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LIFE OF EDWARD LIYINGSTON. 




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LIFE 



EDWARD LIVINGSTON. 



BY 



v. 



CHARLES HAVENS HUNT 



WITH AN INTRODUCTION 



GEORGE BANCROFT. 




NEW YORK: ^ 
D. APPLETON AND COMPANY, 

443 AXD 445 Broadway. 
1864. 



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L&sH^iE 



Entered according to Act of Congress, in the year 1863, by 

Charles H, Hunt, 

in the Clerk's Office of the District Court for the Southern District of 

New York. 



2> i> I "tV 



RIVERSIDE, CAMBRIDGE: 
STEREOTYPED AND PRINTED BY H. O. HOUGHTON. 






TO 

A. DE P. H. 

WHO HAS WATCHED THE COMPOSITION OF THE FOLLOWING 
CHAPTERS WITH A STEADIER INTEREST THAN THEIR TOPICS 2 vf 

ALONE COULD HAVE INSPIRED, THE WRITER DEDICATES HIS 



PREFACE. 



Having been intrusted by the Editors of the "New 
American Cyclopsedia " with the task of preparing 
the notices of Robert R. and Edward Livingston 
which appeared in that work, I conceived an un- 
expected interest in the career of the younger of 
these brothers, and resolved to write a more extended 
sketch of his hfe, such as the pubHc and common 
sources of information would enable me to do. In 
pursuance pf that plan, a considerable part of the 
following work was composed, including the chap- 
ters upon the Livingston genealogy, the first con- 
gressional career of Edward Livingston, his contro- 
versy with Jefferson, and his system of penal law, 
which were finished in their present form. I was 
proceeding to fill up other parts of the outline, when 
an acquaintance which I formed with Mr. and Mrs. 
Thomas P. Barton, the only survivors of Mr. Liv- 
ingston's immediate family, led to my acquisition 
of the best materials for the remainder of the work. 
Besides taking the greatest pains to satisfy all my 
particular inquiries, they in the kindest manner, and 
without reserve or material restriction, placed in my 
hands the whole mass of papers left by Mr. Living- 
ston at his death, a collection, it needs hardly be said, 
of great interest and value, as well for more general 



X 



PREFACE. 



researches as for that to which my attention was de- 
voted 

In the use which has been made of these materials 
I have followed very strictly my own judgment and 
method, which was to confine myself to the presen- 
tation of such matter only as would place in the 
best and plainest light the genius and character of a 
man, an account of whose life, both full and concise, 
I thought our American biography not rich enough 
to well afford to dispense with. 

I have received valuable hints, pieces of informa- 
tion, or clews to information, from several other 
friendly hands. Among these I may mention by 
name the late Honorable Charles J. IngersoU, the 
late Honorable Henry Carleton, (both of whose com- 
munications, though given with true vivacity, were 
spoken from the very door of the tomb,) Mrs. Joseph 
Delafield, Mrs. Henry D. Gilpin, Miss Mary Garret- 
son, the Honorable George M. Dallas, the Hon- 
orable Gulian C. Verplanck, the Honorable George 
Bancroft, David Codwise, Esquire, Augustus R. Mac- 
donough, Esquire, A. Judson Kneeland, Esquire, W. 
Coventry H. Waddell, Esquire, Henry B. Dawson, 
Esquire, George H. Moore, Esquire, and William 
Henry Forman, Esquire. 

The late Honorable Henry D. Gilpin, who was 
Attorney-General in the cabinet of Mr. Van Buren, 
and one of the most accomplished among American 
public men, enjoyed a long political and personal 
intimacy with the subject of this volume. He was 
the author of the sketch of Mr. Livingston which 
appeared, before the death of the latter, in the "Na- 
tional Portrait Gallery." He afterwards read a nec- 
rological notice of Livingston before the American 



PREFACE. xi 

Philosophical Society, which has been published. 
And he intended, and began to write a more ex- 
tended life of his friend, for which purpose he had 
in his possession the same manuscript materials which 
I have now employed. But he had not proceeded 
far in this task when its fulfilment was precluded 
by his own untimely end. 

I am enabled to introduce my work by an estimate 
of the character of its subject, made by one whose 
studies all will recognize as qualifying him in an emi- 
nent degree to compare Livingston with the founders 
of the Republic. It is a satisfaction to find that my 
own impressions do not differ from those of the dis- 
tinguished author of the Introduction, who, as it may 
be proper to say, is not responsible for any of the 
views or expressions in the text, of which he did 
not see any part until after it was printed. 

C. H. H. 

Nenjo York, November i8, 1863. 



INTRODUCTION. 



The domestic virtues, the sweetness of temper, 
the charm of untroubled cheerfulness combined with 
high ability and culture, endeared Edward Living- 
ston to his family and private friends ; for the coun- 
try his life derives its interest from his intimate rela- 
tion to the great epochs of its recent history. 

Descended from families which at an early period 
came over from Scotland and from Holland, he had 
from childhood, in the conduct of his father, an ex- 
ample of a wise and deliberate support of liberty 
against the aggressions of authority, at a time when 
America held her liberties as colonies, and had to 
defend them against the king and the parliament of 
Great Britain. 

As he was just passing out of the years of boyhood, 
the great event that instilled into his mind and af- 
fections the principles which he was to follow for 
life was the American Declaration of Independence; 
and this he took to heart with a peculiar interest, as 
his eldest brother, the guide of his early life, was one 
of the five to whom the framing of that instrument 
was intrusted. 

The country was found to languish in the prose- 
cution of the war, from a want of executive unity, 



xiv INTRODUCTION. 

and for this a remedy was sought in the appointment 
of individuals to manage the several departments; 
as a consequence, the elder brother of Edward Living- 
ston became the first American Secretary for Foreign 
Affairs, and while in that post took the prominent 
part in recognising the most generous code of mari- 
time freedom as the rule of the United States. In 
this manner the younger brother grew familiar at 
once with the most liberal system of international 
law, and the necessity of a closer and firmer cohesion 
of the integral parts of his country. 

The inefficiency of the confederate government 
having been proved by experience in war and in 
peace, the United States proceeded to the greatest 
achievement in the civil history of man, the forma- 
tion of a more perfect Union, by the deliberate act 
and choice of the people. Of all the old thirteen 
States, New York should have been first in its zeal 
for the advancement of that sublime design : what 
evil spell of party spirit, what mistaken interpreta- 
tion of the traditions of the past, what selfish, unen- 
lightened narrowness, what unreasonable transfer of 
the well-founded jealousy of the power of king and 
parliament to the power of the people, could have 
led the State which should have been the eye and 
the guide of the nation, to doubt and seemingly re- 
sist the policy which was so fraught with blessings ? 
There again the elder brother of Edward Livingston 
separated himself from his misleading political friends, 
and in the hour of greatest need gave his influence 
and his voice for the new triumphant Union. At 
this moment both brothers were inspired by the same 
anticipation of the glory of their country and the 
advancement of the best interests of man. 



INTRODUCTION. XV 

Thus far Edward Livingston had been subordinate, 
and his opinions and zeal were effaced by the supe- 
rior publicity and importance of the efforts of his 
brother ; the time was come for his own pubhc ser- 
vice. The Union was estabhshed, but even in the 
period of the Father of his Country it encountered 
one insurrection, and before John Adams had been 
a twelvemonth in the presidential chair, the largest 
State in the Union prepared by separate action, as its 
statute-book shows and its historian records, " to fight 
for her sovereignty." How to meet the danger was 
the question that agitated the nation : one party saw 
safety in aggressive acts of legislation, tending to re- 
straint on the free expression of opinion, and to a 
dangerous exercise of discretionary power; the other 
sought to anchor the Union in the affections of the 
people. It was on this occasion that Edward Liv- 
ingston first became known to the country by pre- 
eminent activity; and it was with his marked and 
most effective concurrence that the support of the 
Union was incorporated into the creed and the heart 
and the life of the democratic party. " We are all 
federalists, we are all republicans," was the official 
summing up of the result; the Union was set high 
above political conflict as the dearest possession of 
all; the executive powers were maintained and ex- 
ercised in their plenary significance; and the gov- 
ernment gained time to harden into firmness and en- 
durance. It was even said that the powers of the 
General Government were enlarged. 

Simple and frugal in his personal habits, he yet 
was overtaken by the severest calamity in his fortunes. 
Struck down by the yellow-fever, caught from his 
visits of consolation and mercy to the sufferers among 



xvi . INTRODUCTION. 

the poor during the raging of that disease in New- 
York, he recovered from a desperate illness to find 
that he had been defrauded by a clerk, and that he 
was a debtor to the government beyond his means 
of immediate payment. Without a word of com- 
plaint, crimination, or excuse, he at once devoted 
his inheritance, his acquisitions, the fruits of his pro- 
fessional industry, to the discharge of his obligation 
to the government, and, for near a score of years, 
gave himself no rest, till he had paid it, principal 
and interest, without defalcation. 

The acquisition of Louisiana opened a new field 
of activity to Edward Livingston, for he transferred 
his home to New Orleans, and the gentleness of his 
character, his decision, and his wisdom pointed him 
out as the fit legislator to blend harmoniously the 
conflicting elements of the territory. We had ran- 
somed it from servitude to European masters with a 
price ; we gave a charm to that ransom by redeem- 
ing its French and Spanish inhabitants into civil 
equality and the fullest enjoyment of our highest 
political rights; we took no way to bind them to 
the Union forever, but by welcoming them as broth- 
ers to all its unequalled advantages and powers and 
hopes. It fell to the lot of Edward Livingston, as 
a legislator, to adjust the old municipal laws, derived 
from France and Spain, to the new condition of the 
connection with America. How great was this ser- 
vice may be judged by a comparison of the process 
in Louisiana with a similar process in the annexation 
of Canada to the British empire. 

The country became involved in war : here Liv- 
ingston, essentially a man of peace, was able to ren- 
der effective aid; his habit of doing justice to men 



INTRODUCTION. xvii 

of every nation had made him the friend of all, 
and the unity of action of all the races of Louisiana 
in the defence of the common country may in some 
measure be traced to the timely wisdom of his 
counsels. 

Once more the conflicts of party turned on the 
question of the preservation of the Union. A spuri- 
ous aristocracy claimed a right for every State which 
they could rule, to nullify the laws of the United 
States to such an extent as would have made the 
Constitution like a ship at sea, water-logged, and at the 
mercy of every wave of political cupidity or passion. 
The salvation of the country turned on the right in- 
terpretation of the principles of democracy. Jeffer- 
son, its early leader, was no more ; but Madison lived 
long enough to expound its acts and resolutions of 
former days ; and Jackson, as President of the United 
States, having Livingston as his adviser, gave author- 
ity to that exposition. Who that looks back upon 
those days does not rejoice that the chief magistrate 
was Jackson, and that his adviser was Edward Liv- 
ingston, who to the clearest perceptions and the firm- 
est purpose added a calm, conciliating benignity and 
the venerableness of age, enhanced by a world-wide 
fame? 

That fame was due to the fact, that Edward Liv- 
ingston, more than any other man, was the represent- 
ative of the system of penal and legal reform which 
flows by necessity from the nature of our institutions. 
The code which he prepared at the instance of the 
State of Louisiana is in its simplicity, completeness, 
and humanity at once an impersonation of the man, 
and an exposition of the American constitutions. If 
it has never yet been adopted as a whole, it has proved 



xviii INTRODUCTION. 

an unfailing fountain of reforms, suggested by its 
principles. In this work more than in any other 
may be seen the character and life-long faith of the 
author. The great doctrines which it develops 
will, as time advances, be more and more nearly 
reduced to practice, for they are but the expression 
of true philanthropy, and, as even the heathen said, 
" Man loves »his fellow-man, whether he will or no." 

GEORGE BANCROFT. 

Neau Tork, 14 November, 1863. 



CONTENTS. 



Page 

CHAPTER I. 

Livingston Manor and the Livingstons. i 

CHAPTER n. 

Birth and Minority of Edward Livingston. 

Birth of Edward Livingston — The Period of his Minority — His 
Father's Family — Judge Robert R. Livingston — Margaret Beek- 
man — The second Robert Livingston — Judge Livingston's Ac- 
tion before and during the Revolution — His Character — Charac- 
ter of Margaret Beekman 15 

CHAPTER HL 

Education and Early Associations. 

Departure of General Montgomery for Canada — School at Esopus ■— 
First Constitution of New York — Robert R. Livingston — Burn- 
ing of Esopus by the British — Destruction of the Family Mansion 
at Clermont — Princeton College — Dr. Witherspoon — Study of 
Law — Cultivation of Philosophy and Poetry — Lafayette — The 
Family at Clermont 29 

CHAPTER IV. 

Early Professional Career. 

New York in 1785 — The Bar — Federal Hall — The Mayor's Court 
— James Duane — The Case of Rutgers 'versus Waddington — 
Richard Varick — Egbert Benson — John Sloss Hobart — Brock- 
holdst Livingston — Burr and Hamilton — Early Professional Career 
of Edward Livingston — His Marriage — Election to Congress.. . . 46 



XX CONTENTS. 

Page 
CHAPTER V. 

Six Years in Congress. 

A Political Canvass in 1794 — Eminent Men in the House of Rep- 
resentatives — Andrew Jackson — Address to the President — Trials 
of Randall and Whitney — Exertions in Behalf of American Sea- 
men — Debates on Jay's Treaty — Lafayette at Olmutz — Estab- 
lishment of Naval Department — Alien and Sedition Measures — 
Speech against the Alien Bill — John Marshall — Debate on the 
Case of Jonathan Robbins — Early Attention of Mr. Livingston to 
the Condition of Penal Laws — Election, in the House, of Jeffer- 
son to the Presidency 61 

CHAPTER VL 

Offices and Misfortunes. 

Approaching Change in Mr. Livingston's Career — Death of his 
Wife — Appointment as Attorney of the United States, and as 
Mayor of New York — Variety of Functions — Germ of the Liv- 
ingston Code — Manners and Tastes — Conduct during the Preva- 
lence of Yellow- Fever in the City — The incurring of a Debt to 
the Government — Circumstances of the Affair — Conduct in that 
Difficulty — Resignation of Offices — Honors thereupon received 

— The Purchase of Louisiana — Letter from Lafayette — Depart- 
ure for New Orleans 89 

CHAPTER Vn. 

Emigration to New Orleans. 

Voyage, and Arrival at New Orleans — The City and its Inhabitants 
in 1804 — Mr. Livingston's Exertions and Success at the Bar — 
His Homesickness — His Professional Character and Public Spirit 

— His Code of Procedure for Louisiana — A Confusion of Tongues 
in the Courts — Eloquence of Livingston before a Masonic Lodge 

— His Method as an Advocate — His Supremacy at the Bar — 
Note from Mazureau — Mr. Livingston's Social Traits — His Taste 
for Mechanical Invention — His Second Marriage — Prospects of 
Pecuniary Success — Obstacles — Calumnious Attack upon Mr. 
Livingston by General Wilkinson 1 1 1 

CHAPTER VIIL 
The Batture Controversy. 135 



CONTENTS. xxi 

Page 

CHAPTER IX. 

Disappointment and Affliction. 

Temper of Mr. Livingston — Condition of Affairs, caused by the De- 
votion of his Time to the Batture Enterprise — Anecdotes — A 
Scrap of Translation — Anxiety to end the Separation from his 
Children — Letters of Julia — Her Death — Letters to Lewis — 
The latter joins his Father 184 

CHAPTER X. 

The Battle of New Orleans. 

Mr. Livingston's Services in the Campaign — His Qualifications — 
His Previous Acquaintance with General Jackson — Meeting of 
Citizens in September, 18 14 — Appointment of a Committee of 
Safety — Address of the Committee to the People — Successful 
Defence of Fort Bowyer — Proclamations by Jackson — His Ap- 
pearance and Reception in the City — His Intimacy with Livingston 
— Contrast and Concord between them — Multifarious Services of 
the latter during the Campaign — Proclamation of Martial Law — 
Gallantry of the young Lewis — Dangerous Service in the Night- 
battle of December 23d — Pleasantry under Difficulties — Rejoicings 
in the City after the Decisive Repulse of the Enemy — Influence of 
Livingston in Jackson's Military Councils — The Lafittes — The 
Draughting of Reports, General Orders, Addresses, etc. — Despatch 
of Colonel Livingston to the British Fleet to negotiate an Exchange 
of Prisoners — His Detention and Return to the City with News of 
Peace — Arrest of Judge Hall under Martial Law — Subsequent 
Arraignment of General Jackson for Contempt of Court — Defence 
of the latter prepared by Livingston — Miniature of Jackson pre- 
sented by him to his Friend — Project of a Life of the General — 
Mutual Attachment established between him and Livingston 195 

CHAPTER XL 

Lewis Livingston. 

Renewal of the Struggle for Pecuniary Independence — Necessity of 
again parting with Lewis — Return of the latter to the North — 
Letters from Father to Son — Labors of the former — Progress of 
the latter's Education — His Successful Mission to Canada to pro- 
cure the Remains of General Montgomery — Scene at Montgomery 
Place on the passing by of the Escort, bearing the Hero's Ashes to 



xxii CONTENTS. 

Page 
New York — Return of Lewis to New Orleans — Crisis in the Bat- 

ture Litigation — An Adverse Decision — Fortitude of Mr. Living- 
ston — His Services in the Legislature of Louisiana — Uneasiness 
on Account of the State of Lewis's Health — Voyage of the latter 
to Europe — His Letters — His Rapid Decline and Death — ■ Depth 
of his Father's Grief 211 

CHAPTER Xn/ 

The Livingston Code. 

Mr. Livingston's Commission by the Legislature to prepare a Penal 
Code — His Qualifications and Zeal — Report of his Plan — Ap- 
probation of the latter by the Legislature — Completion of the Code 

— Its Destruction by Fire, and Restoration — State of Criminal 
Laws in Louisiana in 1820 — Original Features of the Livingston 
Code — Proposal to abolish the Punishment of Death — Details of 
the Proposed System — Explanatory Reports to the Legislature — 
Neglect of the latter to act upon the Reported Code — Effects of its 
Publication 255 

CHAPTER XIIL 
The Reputation of the Code. 276" 

CHAPTER XIV. 

Six Years in the House again. 

Election of Mr. Livingston to Congress — His Position in the House 

— Speech on Roads and Canals — Letters from Jefferson and Du 
Ponceau — Intimacy between the latter and Livingston — Letters to 
Du Ponceau — Completion of the Livingston Code — Destruction 
of the Draught — Energy and Fortitude of the Author — Industry 
in reproducing the Code — Letter from Webster — Speech on the 
Bill to amend the Judicial System, and on the Equality of Rights 
among the States — Vindication of Chancellor Livingston's Services 
in the Purchase of Louisiana — Close Attention of Mr. Livingston 
to the Ordinary Business of Legislation — Payment of his Debt to 
the Government — Manners and Social Habits — General Jackson 
in the Senate — Growth of the Intimacy between him and Living- 
ston — A Letter from the General — Zealous Support of him for the 
Presidency by Livingston — Public Dinner and Speech at Harris- 
burg — Defeat of Livingston as Candidate for Reelection to a Fourth 
Term in the House of Representatives— His Election to the Senate 282 



CONTENTS. xxiii 



Page 

CHAPTER XV. 



Senator of the United States. 

The Satisfaction of Livingston's Ambition — His Social and Domes- 
tic Habits — Letter to his Daughter — Jackson's Desire to employ 
him in the Government — Offer of the Mission to France — Pecu- 
liar Attractions of the Post for Livingston — Letters from Lafayette 

— Necessity of declining the Mission — Appearance in the Senate 

— Speech on Foot's Resolution — Correspondence with Bentham — 
Project for adapting the Livingston Code to the Use of the Federal 
Government — Senatorial Independence 325 

CHAPTER XVL 

Secretary of State. 

Montgomery Place — Mr. Livingston's Retirement for the Congres- 
sional Vacation of 183 1 — A Summons to Washington — Dissolu- 
tion of the Cabinet — The Secretaryship of State pressed upon Mr. 
Livingston — Letter to his Wife — Acceptance of the Office — His 
Views of the Position — Letters — Foreign Transactions of the 
Government — Personal Characteristics of the Secretary of State — 
Anecdotes — Character and Influence of Mrs. Livingston — Pro- 
ceedings in the Senate on the Confirmation of the Cabinet — Dig- 
nified Course of Mr. Livingston on that Occasion — Independent 
Conduct in Office — Course on the President's Bank Policy — Nul- 
lification — Draught of the Proclamation of December 10, 1832 — 
Notes from the President to Mr. Livingston — Amendment of a 
Single Paragraph — The Growth of Mr. Livingston's Reputation 
abroad — Election to the Institute of France — The French Mis- 
sion — Letter from Lafayette — Marriage of Mr. Livingston's 
Daughter — His Appointment as Minister to France — De Toc- 
queville 355 

CHAPTER XVII. 
Minister to France. 

Unsuccessful Attempts by Mr, Livingston to keep a Diary — Extracts 

— Appointment to the French Mission • — Voyage to France — Ob- 
jects of the Mission — Active Exertions of Mr. Livingston — The 
Treaty of July 4, 1831 — Failure to fulfil it by the French Gov- 
ernment — Effiarts of the King, and Opposition by the Chamber 
of Deputies — A Draft for Money drawn by the Secretary of the 



xxiv CONTENTS. 

Page 
Treasury upon the French Minister of Finance — Refusal to pay it 
by the latter — Failure of the Necessary Appropriation in the Cham- 
ber of Deputies — Irritation evinced by President Jackson — Mes- 
sage to Congress — Effect of the Message in France — Offer of 
Passports to Mr. Livingston — His Refusal to accept them unless 
ordered to leave by the Government — Elaborate Letter to the 
Comte de Rigny — Approval of his Course by the President — 
Conditional Appropriation by the Deputies of the Money due the 
United States — Mr. Livingston demands Passports — His Parting 
Address to the Due de Broglie — His Continued Attention to the 
Subject of Penal Legislation — Increase of his Reputation as a Pub- 
licist — Letters from Villemain and Victor Hugo — His Efforts to 
promulgate his System — Letter to the Howard Society of New 
Jersey — Death of Lafayette — Last Letter from the General — Jour- 
ney through Switzerland and Germany — De Sellon's Monument — 
Anecdote of Mittermaier — Livingston's Social Traits and Temper 

— His Correspondence with Public Men — Letter to his Sister — 
Farewell to Davezac — The Homeward Voyage — Popular Recep- 
tion at New York — Public Dinners, etc. — Unanimous Approbation 
in America of Livingston's Conduct of the Mission — Defiant Senti- 
ment of the Nation toward France — Speech of John Quincy Adams 

— The President's Approval of Livingston's Course 386 

CHAPTER XVIIL 

Conclusion. 

Retirement of Livingston to Montgomery Place — Pursuits, Asso- 
ciations, and Views — Visit at Washington — Last Appearance in 
the Supreme Court — Allusion to Jefferson — Mr. Barton's Return 
from France — Culmination of the Difficulty between the two Gov- 
ernments — Letter of Advice from Livingston to the President, 
respecting the Message to Congress on that Subject — Mediation in 
the Affair by Great Britain — Settlement of the Dispute— Extract 
from Livingston's Last Letter to his Wife — Return to Montgomery 
Place — Illness and Death — Honors paid to his Memory — The 
Author's View of Livingston's Character 423 



LIFE OF EDWARD LIVINGSTON. 



CHAPTER I. 
LIVINGSTON MANOR AND THE LIVINGSTONS, 

THE Livingstons of the State of New York have a 
long and genuine pedigree, — one that is so easily 
verified and embraces so many important individual names, 
besides showing a certain continuity of strong character 
outlasting many generations, as perhaps to render perti- 
nent in this place a sketch of it more extended than com- 
monly befits the biographical notice of a j)rominent man 
belonging to one of our republican families. 

On the death of James I. of Scotland, in 1437, 
Sir Alexander Livingstone, of Calendar, was appointed by 
the estates of the kingdom one of two joint regents 
during the minority of James II., being himself made 
Keeper of the King's person, while his associate, Crich- 
ton, received the office of Chancellor. Buchanan and 
others relate minutely how the two regents quarrelled; 
how the Queen -Dowager sided with Livingstone; how 
the Chancellor got })ossession of the King, and kept 
him in Edinboro' Castle ; how His Majesty's mother, 
by a stratagem, delivered him back to Sir Alexander ; 
how a difference of opinion between the latter and the 
royal matron sprung up, which ended in his putting her 
in prison ; how Crichton, by another strategem, got pos- 
session of the youth a second time ; and how all parties 



g LIFE OF EDWARD LIVINGSTON. 

thereupon came to a reconciliation which restored the 
monarch to^his lawful guardian. The latter thenceforth 
experienced several vicissitudes of public disgrace and 
favor, and died soon after being appointed, in 144<9, 
Justiciary of Scotland and Ambassador to England. 

Among the exploits of this Sir Alexander, performed 
in conjunction with his late enemy, Crichton, was one 
of those treacherous and horrid murders, which the 
gentlemen of his day sometimes indulged in with im- 
punity and royal approbation. The story is thus related 
by Burke : — 

"Soon after their reunion, Livingstone and Crichton, 
dissembling their intentions, asked the Earl of Douglas 
to sup at the royal table, in the Castle of Edinburgh ; 
the Earl was foolhardy enough to accept the invitation, 
and proceeded to his sovereign's presence. At first he 
was received with apparent cordiality ; but shortly after 
he had taken his place at the board, the head of a black 
bull, the certain omen, in those days, in Scotland, of im- 
mediate death, was placed upon the table. The Earl 
sprang to his feet and attempted to escape ; but being 
speedily seized and overpowered, he was hurried, along 
with his younger brother, David, and Sir Malcolm 
Fleming of Cumbernauld, one of his chief retainers, 
into the court-yard of the Castle, where they were 
stripped of their armor, and all three in succession be- 
headed on the same block. The death of the young 
and princely Earl of Douglas excited universal detesta- 
tion, and his untimely fate was lamented in the ballads 
of the time : — 

' Edinboro Castle, Tonne and Toure, 
God grant thou sink of Sin, 
And that even for the black dinoure 
Earl Douglas gat therein.' " * 

* Vicissitudes of Families, Second Series, i860. 



LIVINGSTON MANOR AND THE LIVINGSTONS, g 

Tlie family of Sir Alexander then claimed consider- 
able antiquity, and a Hungarian origin. He was the 
ancestor of a large race, which numbered many active 
spirits during the turbulent centuries which followed. 
His son James became the first Lord Livingstone. Al- 
exander, the fifth lord, through whose line the Living- 
stons of New York branch from the family tree, was 
one of the two guardians of Mary Stuart, Queen of 
Scots. His appointment to that office was in 1543; in 
1548 he accompanied his royal ward to France, and he 
died in that country in 1553. His daughter, Mary Liv- 
ingstone, was one of the four Maries, playmates and 
maids of honor to the queen. Some gossip respecting 
the circumstances of her marriage with the son of Lord 
Sempill makes one of the characteristic pages of John 
Knox's lively " Historic of the Reformation of Religion 
within the Realm of Scotland." 

In 1600, Alexander, the seventh Lord Livingstone, 
was created first Earl of Linlithgow, a title which de- 
scended to the fifth earl, who, in 171^5 was made a peer 
of the United Kingdom. Two years later, the latter 
joined the Earl of Mar and the cause of the first Pre- 
tender. He lost his earldom in consequence, and it has 
not been restored to his descendants. 

The first Earl of Linlithgow had four brothers, the 
third of whom was, in 1623^ made a baron of Nova Sco- 
tia. This title came to the eleventh and present baronet, 
as he claims to be, Sir Alexander Livingstone, in 1853. 
He is also, as he alleges, the heir and representative of 
the attainted Earl of Linlithgow, whose lineal race is 
extinct. The claim of Sir Alexander is, however, at 
present, the subject of litigation. The tenth baronet dy- 
ing childless, his younger brother, Thurstanus, the father 
of Sir Alexander, is the medium through whom the lat- 



4 LIFE OF EDWARD LIVINGSTON. 

ter claims the succession. This Thurstanus, though the 
brother of an admiral, had gone to sea as a common 
sailor, and, after leading a life in all respects on a level 
with that vocation, died in great poverty in 1839, at the 
age of seventy years.* 

Three other titles, with estates, were conferred upon 
enterprising- younger sons of the House of Livingstone : 
the Earldom of Calendar, in 1641, which in the course 
of descent became merged in that of Linlithgow ; the 
Earldom of Newburgh, in 1660, which is now extinct; 
and the Viscountship of Kilsyth, in 1661, which was for- 
feited by the heir in the Rebellion of 1715. 

But to return, for the clew which leads to our sub- 
ject, to the fifth Lord Livingstone, guardian of Mary 
Stuart. His son, John Livingstone, being slain at the 
Battle of Pinkiefield, in 154^7? was succeeded by a son, 
Alexander, the first of three generations of ministers of 
the Scottish church. The latter and his son William, 
whatever may have been their labors or their virtues, ap- 
pear to have made no such noise in the world as leaves 
any posthumous echo, and, but for the circumstance of 
their having served as links between generations of 
more conspicuous men, could never have received men- 
tion in any book written at a time so remote from their 
own as the present. But the Reverend John Living- 
stone, son of William and grandson of Alexander, was 
a celebrated preacher, was prominent in Scottish eccle- 
siastical history, and, in 1650, was one of the two com- 
missioners appointed on the part of the kirk to proceed, 
in conjunction with those conunissioned by the Parlia- 
ment, and to negotiate with Charles II. at Breda the 
terms of that king's admission to the throne of Scot- 

* These matters are stated with much detail by Sir Bernard Burke in 
the volume just referred to. 



LIVINGSTON MANOR AND THE LIVINGSTONS. 5 

land. His birth was in 1608, and his death in 167^. 
The last nine years of his life were passed at Rotter- 
dam, whither he had retired under a sentence of ban- 
ishment for non-conformity at home. Before his exile, 
he had been settled successively at Killinshie, at Stran- 
rawer, and at Ancram. He left an autobiography,* 
especially interesting- to his religious denomination, and 
historically very curious as an account of these nego- 
tiations at Breda, from a spiritual and theological point 
of view. 

His son Robert — the founder of the far-spreading 
race of Livingstons in the New World — was born at 
Ancram, in Teviotdale, Roxburghshire, Scotland, in 1654*. 
The clerical temper did not descend to him. His spirit 
was of too adventurous a cast to permit his taking to 
the calling or life of his father, grandfather, and great- 
grandfather. He was ambitious, shrewd, acquisitive, 
sturdy, and bold. His whole career was a persistent 
illustration of the motto upon the scroll of his ances- 
tors' coat of arms, — '''• Si je puis." And when, orr the 
occasion of being shipwrecked, as will be presently men- 
tioned, he adopted for his own shield, together with a 
disabled ship for a crest, " Spero Meliora,'' he ex- 
pressed well the most salient trait of his character, as 
afterwards developed in the sternest trials. His father's 
exile had been the occasion of his learning the Dutch 



* Several editions of this work in the year 164 1, being sixty-five years 

have been published, the latest be- old. His father was Mr. Alexander 

ing that of The Wodrow Society, I,ivingstone, minister also at Monya- 

Edinburgh, 1845. The reverend au- brock, who was in near relation to 

thor begins with the following state- the house of Callender ; his father, 

ment : " My father was Mr. Wil- who was killed at Pinkiefield, a7mo 

liam Livingstone, first minister at Chris ti 1547, being ane son of the 

Monyabrock, where he entered in Lord Livingston's, which house there- 

the year 1600, and thereafter was after was dignified to be Earles of 

transported about the year 16 14 to Linlithgow." 
be minister at Lanerk, where he died 



6 LIFE OF EDWARD LIVINGSTON. 

language. His first step in life, on attaining full age, 
was to plunge into the wilderness of New York, along 
the upper Hudson. Albany, then a village of Dutch- 
men, became his residence. He was very soon appointed 
secretary of the board of commissioners who had charge 
of " Albany, Schenectady, and the parts adjacent." This 
office he held until Albany became a city, in 1686. 
Three years before, he had married Alida, widow of 
Rev. Nicholas Van Rensselaer, whose maiden name was 
Schuyler. He and his brother-in-law, Pieter Schuyler, 
were formally charged with the mission of proceeding 
to New York and receiving the new city's cliarter from 
Dongan, Governor of the colony. 

During the three years preceding 1686, Robert Liv- 
ingston had, with the consent of the colonial govern- 
ors, effected several purchases from Indians of large 
tracts of land, adjacent to each other, and together form- 
ing a domain commencing about five miles south of 
the present city of Hudson, and having, on the eastern 
shore of the Hudson River, a front of about twelve 
miles, extending to the boundary between New York 
and Massachusetts, upon which side it was about twenty 
miles broad, and embracing upwards of one hundred 
and sixty thousand acres. The first conveyance, dated 
July 12, 1688, was of two thousand acres on Roelof 
Jansen's Kill. The deed was executed by two Indians 
and two squaws, whose names it is difficult to write 
and impossible to pronounce. The consideration ex- 
pressed was the purchaser's promise, " to pay to the 
said Owners these following Goods in the time of 
five days to Wit three hundred guilders in Zewant, 
Eight Blankets and two Childs Blankets, five and 
twenty ells of Duffels and four garments of Strouds, 
ten, large shirts and ten small ditto, Ten pairs of large 



LIVINGSTON MANOR AND THE LIVINGSTONS. >^ 

stockings and ten pairs of Small ; Six Guns, fifty- 
pounds of Powder, Fifty staves of Lead, four caps. Ten 
Kettles, Ten Axes, ten adzes. Two pounds of Paint, 
Twenty little Scissors, Twenty little looking-glasses, one 
hundred fish hooks, Awls and Nails of each one hundred, 
four Rolls of Tobacco, one hundred Pipes, ten Bottles, 
Three kegs of Rum, one Barrel of Strong Beer and 
Twenty knives. Four Stroud-Coats and Two duffel-Coats, 
and four Tin kettles." And the other conveyances are 
of the same character.* 

These purchases were severally confirmed by Gov- 
ernor Dongan, and, on the 22d of July, 1686, he issued 
to the proprietor a patent, erecting the territory into 
the Lordship and Manor of Livingston, reserving to the 
Crow^n a yearly rent of twenty-eight shillings sterling, 
payable at Albany on the S5th of March. The patent 
granted to the proprietor the privilege of fishing, hawk- 
ing, hunting, and fowling within the manor, and the 
right to fish in the Hudson River along the boundary ; 
and the possession of all mines and minerals, excepting 
only gold and silver mines. The grantee was author- 
ized to hold a court leet and court baron, and had the 
advowson and right of patronage of the churches within 
the manor. The patent gave the tenants the privilege 
of assembling to choose assessors, to defray the public 
charges of cities, counties, and towns within the manor, 
according to the usages and laws in force in the prov- 
ince at large. The grant was confirmed by royal char- 
ter of George L, in V^\5^ which conferred upon the 

* Documentary History of Neiu Catskil acknowledges to have re- 

York, quarto edition, vol. iii. page ceived full satisfaction by a cloth gar- 

367. At the foot of one of these ment and cotton Shift for her share 

conveyances, the following memo- and claim to a certain Flatt of Land 

randum occurs : " This day, the i8"^ Situate in the Manor of Livingston ; 

July 16S7, a certain Cripple Indian Which Witness," etc. Ih. page 

Woman named Siakanochqui of 369. 



8 LIFE OF EDWARD LIVINGSTON. 

tenants the further privileg-e of electing a representative 
to the General Assembly of the colony, and two con- 
stables. 

No doubt, the lord of the new manor believed he 
was founding a house and perhaps a title that would 
endure ; an inheritance which would long cohere and 
expand. But he was not a prophet ; for in the third 
generation after him, the fabric which he had devoted 
his life to build quietly dissolved under the progress of 
advancing ideas and changing institutions. If, however, 
he could have foreseen the actual future of his family, 
— a vigorous race of great numbers and various 
branches, including many distinguished and some illus- 
trious men, lights of trade, of politics, of jurisprudence, 
of legislation, of diplomacy, of divinity, — it would have 
been enough to satisfy a reasonable adventurer's moder- 
ate expectations. 

But, whatever his views or his visions may have 
been, he led a stormy life, and battled hard in order to 
accomplish the object of leaving his eldest son second 
lord of the manor. He suffered many particular disas- 
ters, but his life was a current of general good fortune. 
He had several downfalls which, when they happened, 
appeared to be final ; but from every one of them he 
recovered himself as with a bound. He made two voy- 
ages to Europe : in the first, he was shipwrecked off 
the coast of Portugal ; in the second, he was taken by 
a French privateer, and, as he alleged, " most barbarous- 
ly used ; " yet both these misfortunes he turned to prof- 
itable account. He was more than once deprived of 
his offices by the ascendency of his enemies in the 
colonial government, but he always contrived to have 
them restored with additions. He was once denounced, 
with some show of evidence, as a defaulter ; but he 



LIVINGSTON MANOR AND THE LIVINGSTONS. 9 

cleared his character, and overcame his defamers hand- 
somely. He was hunted by Governor Leisler, to whose 
party he was warmly opposed, for treasonable words 
against the King, which he was falsely and treacherously 
accused of having uttered; but before he could be ar- 
rested, Leisler was himself executed for usurpation and 
treason. Years later, the Leislerian faction, having 
again got a preponderance in the colonial councils, de- 
clared his estates confiscated, and himself suspended from 
his right to sit at the council board ; but he procured 
the royal reversal of all this within a few months. 

From the income of his half dozen offices, from his 
agency of Indian affairs, from the profits of various 
contracts with the Government, and from the rents of 
his lands, the grantee of the manor gradually grew rich. 
In 169'2, he built a manor-house on the bank of the 
Hudson, just above the mouth of the stream now called 
Livingston Creek ; but he did not begin actually to re- 
side there till I7II. In the latter year he was elected 
member of the General Assembly of New York for the 
city and county of Albany. In that body he continued 
till 17*26, when he withdrew from public life. For the 
last ten years of this time, he represented his manor 
under the latest and royal grant. He died in 17^8, at 
the age of seventy-four. 

The most notable blunder in Robert Livingston's ca- 
reer seems to have been the patronizing of William Kidd, 
by procuring for him from the Government a commis- 
sion to sail against the pirates whose depredations on the 
Atlantic were then of alarming frequency and dreadful 
description. Captain Kidd, as every one knows, whatever 
may have been his first intentions, if story and song 
treat him fairly, lapsed into a good many immoralities 
on his own account. 
2 



IQ LIFE OF EDWARD LIVINGSTON. 

" Mv name was Robert Kid, 

When I sailed, when I sailed." 

To how many different spots has tradition pointed as 
hiding-places of his evil and enormous gains ! One of 
the places so designated was upon the bank of the river 
in front of the ancient manor-house. The present oc- 
cupant of that site, only a very few years since, dis- 
covered a band of superstitious neighbors on the spot 
referred to, digging at midnight, with appropriate in- 
cantations, for the concealed treasure. 

Robert and Alida Livingston had five sons and four 
daughters. Two of the sons and two of the daugh- 
ters died unmarried. The other three sons were Phil- 
ip, Robert, and Gilbert. These were born in 1686, 
1688, and 1690. In favor of Philip, the eldest, the 
father had resigned all his offices, excepting his seat in 
the General Assembly, six years before his death. To 
him he now left the bulk of his property, including 
the whole of the manor, except about thirteen thou- 
sand acres from the southern part, afterwards known as 
the Manor of Clermont, or lower manor, which he 
conveyed to Robert in special consideration of an im- 
portant service which the latter had rendered, in the 
detection of a plot formed by negroes for a massacre 
of the white inhabitants of the neighborhood. To the 
third son, Gdbert, he gave an estate at Saratoga. 

Philip Livingston, second proprietor of the manor, 
became the patriarch of a large family of his own. 
His sons of whom most is known, were Robert, 
Philip, and William, born respectively in 1710, 1716? 
and 17!'^3. Robert became the third and last lord 
of the manor. By his will he divided it, like a 
democrat, fairly among his children, in spite of his 
eldest son's loud remonstrance, and fervent entreaty 



LIVINGSTON MANOR AND THE LIVINGSTONS. H 

that, for the sake of propriety, he miglit take the 
whole. 

The last proprietor of the manor died in 1790. 
His great-grandchildren are numerous men and wom- 
en of the present generation. His younger brother, 
Philip, signed the Declaration of Independence. The 
latter was a merchant of the city of New York, of 
such talents and character as secured for him great 
consideration amongst the illustrious men in the Con- 
gress of 1776- Hg died two years after the Decla- 
ration, and five years before the War of Independence 
was ended. The next younger brother, William, was 
a very eminent man, — a lawyer, poet, editor, and 
statesman. He was Governor of New Jersey from 
177^ ""til his death in 1790. One of the sons of 
the latter was Brockholdst Livingston, eminent first at 
the bar, then on the bench of the Supreme Court of 
the State of New York, and finally as one of the 
judges of the Supreme Court of the United States. 

The second son of the first lord of the manor, Rob- 
ert, to whom the lower manor was given, was a man 
of much learning, character, and influence, and his 
views of American affairs and destiny were in advance 
of those of most, if not all, of his countrymen. He 
died in 177<5, an ardent and clear-sighted patriot. He 
was the father of Robert R. Livingston, a judge of 
the Supreme Court of the colony of New York, 
whose death, also, was in Vl'^5. Judge Livingston 
had, among other children, two sons whose several ca- 
reers threw lustre upon their family name, their pro- 
fession, and their country. These were Robert R. Liv- 
ingston, the first Chancellor of the State of New York, 
and Edward Livingston, the immediate subject of this 
volume. 



12 LIFE OF EDWARD LIVINGSTON. 

There are many descendants of Gilbert, the third son 
of the grantee of the manor. The celebrated divine, 
John H. Livingston, of New Jersey, who is regarded 
as one of the fathers of the Reformed Dutch church 
in America, and who died in 1825, was one of his 
grandchildren. 

When the first Robert Livingston returned in 1696 
from one of his visits to his native country, he was 
accompanied by his nephew, another Robert Livingston, 
who came to reside also at Albany. The next year, 
the latter married Margaretta, daughter of Pieter 
Schuyler, and niece of Alida. The descendants of this 
couple were, and still are, numerous. Several of them 
have been prominent citizens of New York and other 
States, especially in the w^ay of commercial enterprise. 

The elder Livingston family, from the time of its 
founder, always wielded an important influence in the 
affairs of the colony of New York, and was for many 
years one of the powers in the State. During the 
canvass which ended in the first election of Mr. Mad- 
ison to the Presidency, the active adherence of the 
Livingstons as a family was deemed by that states- 
man and his political friends essential in order to carry 
the State of New York for the democratic candidate. 
What a change has the intervening half-century wrought, 
not merely in the affairs of this house, but in those of 
all like establishments in this country ! The Living- 
stons are now a multiplied host of for the most part 
energetic and successful individuals, and their aggregate 
wealth and influence exceeds the probable dreams of 
their ambitious ancestor. Yet the strength which comes 
of combination is gone from them. Our democracy 
divides every clan, minces every estate, individualizes 



LIVINGSTON MANOR AND THE LIVINGSTONS. 13 

everybody, disintegrates everything. Each man is the 
head of his own family ; no man can be the head of 
the family of his ancestors. With us, the question 
whether or not the eldest son shall be wealthy, power- 
ful, a patron, depends upon the eldest son's personal 
qualities ; and the question whether or not the younger 
son shall be a clergyman, usually turns upon his individ- 
ual inclination. The law does not arrange these matters 
for them before they are born ; and if a Plantagenet 
w^ould appropriate any of the offices or honors of the 
republic, he must first vie with and overcome a rival 
bearing perhaps the newest of names. But in all this 
our institutions only tally with the general spirit of this 
age. The most hoary governments of the Old World 
are drifting visibly towards democracy. Even among 
crowned heads, at the present day, an upstart is apt to 
be influential, if not respectable. 

In the United States, we seem to be outherodino- 
this tendency of the times. Our political leaders, rep- 
resentatives, and even judges, are now too often indi- 
viduals whom many an obscure, well-bred person would 
not meet in the same drawing-room for all the world. 
We are certainly making some progress in bridging 
the gulf which once generally separated low manners 
from high positions. Such progress is one of the 
worst of our present evils ; it threatens us with the 
most palpable of our future dangers. How far the 
etfrontery of ill-bred ignorance and incapacity will carry 
itself towards monopolizing places of dignity, power, 
and trust, is truly a question of moment. It is fright- 
ful to contemplate the possibility that the entire gov- 
ernment in all its branches of so great and prosper- 
ous a country may, some day, be given permanently 
over to unlettered and unmaunered statesmen. The 



14( LIFE OF EDWARD LIVINGSTON. 

whole world always did and always will respect a man 
who becomes conspicuous by force of high capacity 
and virtue, in spite of humble birth and imperfect ed- 
ucation ; but surely it would be better if public opin- 
ion should restrain politicians from aspiring to the 
Presidency without a respectable knowledge of gram- 
mar and the proprieties of life. 



CHAPTER II. 

BIRTH AND MINORITY OF EDWARD LIVINGSTON. 

Birth of Edward Livingston — The Period of his Minority — His 
Father's Family — Judge Robert R. Livingston — Margaret Beekman — 
The second Robert Livingston — Judge Livingston's Action before and 
during the Revolution — His Character — Character of Margaret Beek- 
man. 

EDWARD LIVINGSTON was born at Clermont, 
Columbia County, New York, on the 26th of 
May, 1764^. His minority, therefore, embraced more 
than the whole course of the American Revolution. He 
witnessed in boyhood the cause, the struggle, and the 
result. He was born to citizenship in a perfectly loyal 
colony of the British crown ; before he was a man, 
that colony had become an independent State, irretriev- 
ably committed to republican institutions. The inci- 
dents of this swift and permanent change in the af- 
fairs of his country were before his eyes during every 
hour of his youth, and all his family were devoted to 
the labors, sacrifices, and dangers belonging to such a 
transition. 

It was an extraordinary family. Besides one child 
that died in its infancy, there were six daughters and 
four sons, all of whom were destined to reach a green 
old age, ranging from sixty-six to ninety-eight years, 
Edward was the youngest of all, — the Benjamin 
of the household. The other nine were, first, Janet, 
born in 17^^^? and married to the celebrated Rich- 
ard Montgomery, who fell at Quebec in 177-5 ; second. 



IQ LIFE OF EDWARD LIVINGSTON. 

Robert R., the first Chancellor of the State of New 
York, born in 174*6 ; third, Margaret, Mrs. Thomas 
Tillotson of Rhinebeck, born in 174*8, whose husband 
was one of the early Secretaries of State of New 
York ; fourth, Henry B., a colonel in the Revolutionary 
army, born in 17'50; fifth, Catharine, born in 1752, and 
married to the Reverend Freeborn Garretson of Mary- 
land, one of the pioneers of the Methodist church in 
this country, whose memory, for sanctity and zeal, is 
held in high veneration by that denomination of Chris- 
tians ; sixth, John R., born in 17<55 ; seventh, Ger- 
trude, born in 17-57? wife of the general, politician, 
governor, and judge, Morgan Lewis ; eighth, Joanna, 
born in 17-59, and married to Peter R. Livingston, an 
eminent politician of the State of New York ; and last, 
Alida, born in 17^1, and married to another Revolu- 
tionary officer, General John Armstrong, who, after 
the war, held important civil positions, including those 
of Secretary of State for Pennsylvania, Minister of the 
United States to France during the latter part of Jef- 
ferson's administration, and Secretary of War under 
Madison. 

The father of these ten children was Robert R. 
Livingston, one of the judges of the Supreme Court 
in the colony of New York ; their mother was Mar- 
garet, daughter of Colonel Henry Beekman, and grand- 
daughter, on her mother's side, of Robert, nephew of 
the first proprietor of the Livingston Manor, and Mar- 
garetta Schuyler. The marriage of this couple, in 
1742, had been one of mutual love. Both of them 
were only children of their respective parents, both 
were to inherit large landed estates, and both had been 
bred to the highest refinement and best culture possi- 
ble on this side of the Atlantic, in their time. There 



HIS MINORITY. 



17 



was such adaptation in their characters and tastes that 
the ardor and even demonstrativeness of their affection 
for each other grew with their married hfe. The fol- 
lowing- is one of his letters to her written in July, 
17'55, thirteen years after their marriage, and when 
she had borne him seven children : — 

" My last letter was written in a melancholy mood. 
To you I am not used to disguise my thoughts. In- 
deed, I have for a long time been generally sad, ex- 
cept when your presence and idea enliven my spirits. 
Think, then, with how much pleasure I received your 
favours of the 30th of June and 3d instant. This I 
did not do till last Sunday, and I have been happy 
ever since. 

" You are the cordial drop with which Heaven has 
graciously thought fit to sweeten my cup. This makes 
me taste of happiness in the midst of disappointments. 
My imagination paints you with all your loveliness, — 
with all the charms my soul has for so many years 
doated on, — with all the sweet endearments past and 
those which I flatter myself I shall still experience. I 
may truly say, I have not a pleasant thought (abstracted 
from those of an hereafter) with which your idea is not 
connected ; and even those of future happiness give me 
a prospect of a closer union with you. 

" I have not agreed with the Benthuysens yet ; and, 
what is unaccountable, they say that my offers are not 
fair. I fear that I must go to law with them at last, 
but I shall try once more to get their final answer. 

" I expect to-morrow the pleasure of the last letter 

from you while I am absent. Let the next after your 

receipt of this be to my father, for I hope to be on 

my voyage to you next Saturday. To-morrow, I in- 

3 



X8 LIFE OF EDWARD LIVINGSTON. 

tend to go and see your father, to consult with him. 
Your letters give me some hope of Bedloe's, which 
would be a very agreeable thing indeed. We must 
depend on Providence and hope for the best. 

" May the God of heaven preserve you, and grant 
us a happy meeting, for without you I am nothing. 
" Yours most affectionately, 

" Robert R. Livingston. 

" Remember me to all the little ones Providence 
has committed to our charge, and kiss them for me. 
Wednesday the 9th. Began to write on Tuesday, in- 
tending to send by a sloop, but it goes now by the 
mail." 

The refined reader of the above letter will not have 
overlooked the natural touch of filial tenderness which 
gleams from one of its sentences. The object of the 
sentiment there so delicately but clearly indicated was a 
notable man. The father of Judge Livingston was 
Robert, second son of the first proprietor of the Manor 
of Livingston, and the same who had earned and re- 
ceived the Manor of Clermont, as was stated in the first 
chapter. We have a general likeness of him as he 
appeared at the age of eighty-five, sketched by the pen 
of his grandson Edward.* " Never," says this descrip- 
tion, " was man better entitled by his manners, his mor- 
als, and his education, to the appellation of gentleman. 
His figure was tall, somewhat bent, but not emaciated, 
by age, which had marked but not disfigured a face once 

* Edward Livingston, in mature but one chapter. In that the descrip- 

life, conceived a plan of writing a tion quoted in the text occurs. The 

novel in which the characters should fragment is headed with the couplet : 
be drawn faithfully from his own 

memories of the actual group of " Scenes in sad remembrance set ; 
■which his grandfather was the central Scenes never, never to return." 

figure. He appears to have written 



HIS MINORITY. 



19 



remarkable for its regular beauty of feature, and still 
beaming with the benevolence and intelligence that had 
always illuminated it. He marked the epoch at which 
he retired from the world by preserving its costume : / 
the flowing, well-powdered wig, the bright brown coat, 
with large cuffs and square skirts, the cut-velvet waist- 
coat, with ample flaps, and the breeches scarcely cover- 
ing the knee, the silk stockings rolled over them, with 
embroidered clocks, and the shining, square-toed shoes, 
fastened near the ankle with small, embossed gold buc- 
kles. These were retained in his service, not to affect a 
singularity, but because he thought it ridiculous, at his 
time of life, to follow the quick succession of fashion." 
He had, in his youth, been sent out to Scotland to be 
educated, and had remained there till the age of twenty- 
five. His attainments are said to have been extraordi- 
nary for his time. What remains of the correspond- 
ence between himself and his son indicates, on the part 
of both, a fomiliar though unpretending acquaintance 
with ancient classical literature. He was a life-lonof 
student, and it is related of him that at an advanced 
age he made the acquisition of a new language.* His 

* He always kept a book in New York, exhibits the old gentle- 
which he copied, with his own hand, man in the light of traits the most 
apparently all his letters, even those whole-souled and amiable. In the 
addressed to the members of his fam- same letter, which is a long one, the 
ily and to his grandchildren. The octogenarian discusses several matters 
latest two of these books, bound in of private business connected with 
parchment, and containing copies of the surveying of lands and the collec- 
the letters he wrote during his old tion of rents, alludes to political af- 
age, are now lying beside me. These fairs in Europe and America, makes 
letters are principally in English, a long quotation in the original from 
some in German, a tew to his grand- Erasmus, adds some religious retlec- 
daughters in French, and one or two, tions of his own, and reminds his 
addressed to his grandson Robert grandson to bring with him, upon his 
while at college, in Latin. The fol- next visit, a plentiful supply of gun- 
lowing beginning of a letter, which I powder and fish-hooks, 
transcribe from one of these antique 

manuscript folios, written to the " C/arf-wo«/, the 29'*" March 1769 

young Robert after the latter had " D*^ Grandson Rob''' 
commenced the practice of law at " I rec'^ y"^^ of the 6"" Marcii ; 



20 LIFE OF EDWARD LIVINGSTON. 

nature was deeply imbued with religion, — a character- 
istic in which he enjoyed the complete sympathy of his 
only son. Several years before his death he made over 
his entire property to the latter, in whose large family 
he passed the remnant of his life in patriarchal dignity 
and happiness. But his greatest distinction was his early 
looking and longing for the independence of his coun- 
try, — a subject on which his views and sentiments appear 
to have outrun those of all his contemporaries, even of 
the leading spirits in the approaching Revolution. They 
relate of him, that, one day in the latter part of the 
year 177^? his son, his grandson Robert, — the destined 
Chancellor, — and Richard Montgomery were convers- 
ing with him in his room at Clermont, when he ex- 
claimed, "It is intolerable that a continent like America 
should be governed by a little island, three thousand 
miles away. America must and will be independent. 
My son, you will not live to see it ; Montgomery, you 
may ; Robert," addressing his grandson, "you will." The 
prediction proved oracular ; for Judge Livingston and 
General Montgomery were both to die on the eve of 
American Independence, while to the young Robert it 
was allotted, at the age of twenty-nine, to serve with 
Jefferson, Franklin, Sherman, and Adams, as the com- 
mittee selected by Congress to prepare the immortal 
Declaration. The old man's patriotic ardor had kept 
pace with his foresight, and both had unquestionably 
moulded in a great degree the sentiments and views of 

but your good father opened it by bills were taxt, and then not to be 

mistake : consequently he knew you too hasty, w'='' would look necessi- 

had apply'd to me, in pursuance of tous and griping, wherein he acqui- 

my orders, for a little money in case esc'd. I should immediately have 

you should be straitened, w"^"" I take enclosed you a 10"* bill, but he told 

in good part. Yr daddy was a little me you would receive about £50 or 

out of humour, alledging you was a £60 of his money, whereout you 

little too lavish ; but I told him you could deduct that amount ; so I gave 

could not receive cash for law, till him the £10." 



HIS MINORITY. 21 

the large circle of which he was the centre. He 
died in 177-^5 after hearing- of the events at Lexing- 
ton ; and among his last words — addressed to his 
daughter-in-law — were, " Peggy, what news from 
Boston ^ " 

Judge Livingston, the father of Edward, was a man 
worthy to transmit to his children the strong traits of 
his ancestors. Religious feeling was the ruling quality 
of his character. With this were blended a mild tem- 
per, an affectionate disposition, inflexible principles, prac- 
tical energy, and worldly wisdom. I have before me a 
considerable number of his family letters, besides that 
which has been already transcribed; and they not only 
all together show that he possessed this combination of 
qualities, but almost every separate letter exhibits them 
all. His judicial duties, political labors, and private af- 
fairs gave him plenty of employment. But in the 
midst of the most multifarious engagements he wrote 
constantly to his father upon all subjects, and especially 
to communicate any news respecting the colonial policy 
of the mother-country, — a theme which greatly occupied 
the thoughts of both for many years before the Revo- 
lution broke out. He was chairman of the committee 
which was appointed by the General Assembly of 
New York with authority to correspond with other As- 
semblies and their committees in relation to the several 
grievances and apprehensions of the American colonies.* 
As such, he with his colleagues was admitted, in the 
absence of delegates regularly appointed by New York, 
to a seat in the Stamp Act Congress of 176-5, and took 

* This appointment of a com- of the kind taken in America, though 

mittee of correspondence by the As- a dispute for the honor of that prior- 

sembly of New York took place on ify existed for a time between those 

the i8th of October, 1764, and was, who claimed it respectively on behalf 

by more than six years, the first step of Massachusetts and of Virginia. 



2g LIFE OF EDWARD LIVINGSTON. 

an active part in its deliberations. And he was the 
author of the address to the King adopted by that body, 
praying- for " the invaluable rights of taxing ourselves 
and trials by our peers." Then, as at other times, he 
would write to his father, giving details of what he was 
doing and thinking, dwelling upon the madness of Eng- 
land, criticising the slowness of the mode of transacting 
business in Congress, chronicling whatever he observed 
of variation in the popular feeling, and pleading the 
multiplicity of engagements as his excuse for not writ- 
ing more. One of these letters, a long one, dated the 
19th of October, 17^5, closes as follows : " See the 
three great points we have to contend for, and of what 
importance they are : trials by juries, a right to tax our- 
selves, the reducing admiralty courts within their prop- 
er limits. If you, Sir, consider my situation, you will 
excuse my not writing to you before. Yesterday I had 
the whole Congress to dine with me. In one place or 
another we dine together every day ; so that, besides 
business, this engrosses much time. I am now obliged 
to drive my pen over this as fast as I can." Under 
date of September, 1767? he writes, " I have nothing 
very agreeable. Madness seems to prevail on the other 

side ; melancholy and dejection on this This 

country appears to have seen its best days ; but God 
may still avert the impending miscliief and restore all 
things. Our Governor seems rather too much taken up 
with trifles. The grand object with him is the build- 
ing of a playhouse, though nothing he could think of 
will give greater offence to the people. But he will 
have it guarded by the army." 

.ludge Livingston's moderation kept him rather be- 
hind both his aged father and his youthful son in their 
views of Independence. In the Stamp Act Congress 



HIS MINORITY. 23 

he had favored the measure of an explicit acknowl- 
edgment of the right of Great Britain to regulate the 
trade of the colonies, and had deprecated in one of his 
letters the heat of those members who had opposed that 
measure. On the 5th of May, 177"^? ^^ wrote to 
Robert as follows : — 

" Dear Son : You, I suppose, are now on your way 
to Philadelphia, and will soon make one of that impor- 
tant body which will engage the attention of all America 
and a great part of Europe. May Heaven direct your 
counsels to the good of the whole empire. Keep yourself 
cool on this important occasion. From heat and passion, 
prudent counsels can seldom proceed. It is yours to plan 
and deliberate, and whatever the Congress directs, I hope 
will be executed with firmness, unanimity, and spirit. 
Every good man wishes that America may remain free. 
In this, I join heartily ; at the same time, I do not desire 
that we should be wholly independent of the mother- 
country. How to reconcile these jarring principles, I 
profess, I am altogether at a loss. The benefit we re- 
ceive of protection seems to require that we should con- 
tribute to the support of the navy, if not to the armies of 
Britain. I would have you consider whether it would not 
be proper to lay hold of Lord North's overture, to open 
a negotiation and procure a suspension of hostilities. In 
the mean time, the check General Gage has received, and 
our non-importation, will perhaps have a good effect in 
our fjivor on the other side of the water. This seems 
to be the thought of our council here, as Mr. Jay and 
Mr. Livingston will inform you. I should think, if you 
offered Britain all the duties usually paid here by our 
merchants, even those paid since the disturbances began, 
those on tea excepted, which seem to be too odious, 



24. Llt'E OF EDWARD LIVINGSTON. 

and all other duties they may think convenient to levy 
for the regulation of trade, shall be lodged in the treasury 
of each colony, to be disposed of by their respective as- 
semblies and legislatures, on an engagement on their 
side that no other taxes shall be imposed on them but 
by their own representatives, we ought to be contented. 
Some specious offer should be made, to increase our 
friends in England. This, or some other of that kind, 
if Lord North meant anything by his motion, but to 
deceive the people of England, ought to put a stop to 
his proceedings for the present; otherwise the odium he 
lies under must increase. The Boston Charter ought 
by all means to be restored, and were the tea paid for, 
as a douceur^ by the whole continent, it would be no 
matter. But this you will not insist on except you are 
well supported. These are my present thoughts ; how- 
ever, judge for yourself, and unite by all means, for on 
this all depends. As to what relates to war, after agree- 
ing on quotas, the manner of levying men and money 
will, I suppose, be left to each colony. May God direct 
you in all things. A dependence on him will inspire 
both wisdom and courage ; and if his Providence in- 
terfere in anything, as I firmly believe it does in all 
things, it certainly does in the rise and fall of nations. 
" Your most affectionate father, 

" R. R. Livingston. 
" Inquire whether I can have a quantity of saltpetre. 
I hear there is a large quantity imported at Philadel- 
phia." 

The saltpetre in this postscript sought after was for 
use in a powder-mill, which the writer vi^as then erect- 
ing, and in which his son, John R., manufactured gun- 
powder during the Revolutionary War. The following 



HIS MINORITY. 25 

letter to Robert, dated June 19, ITT-^, shows the prog- 
ress of Judge Livingston's views, and of his powder- 
mill : — 

" I conclude, from the King's answer to the Lord 
Mayor, that if American liberty is maintained, it must 
be by the greatest exertion of our force, under the 
favor and direction of Providence. In this situation I 
am under no apprehension but from the enemies we 
have amongst ourselves. A hearty and united opposi- 
tion would render us to all appearance invincible. In 
this part of the country we have many opposers, but 
still the Whig interest appears to be growing. Com- 
mittees either have been or will be chosen in every part 
of Dutchess ; but I believe there will be many who will 
not sign the association, and great opposition is made to 
the choosing of a committee in Rhinebeck. Cousin 
Robert found the manor people under arms last Tuesday. 
About two thirds signed the association ; the rest are to 
consider it a fortnight, but many oppose warmly. The 
Whigs are predominant, at least in Tryon, and if I can 
depend upon the information I have received, have sent 
deputies to the P. Congress. I hear the adjourning of 
your Congress to Hartford or Albany has been men- 
tioned. As the object of most consequence is union, the 
greater attention should be paid to the three counties, 
Albany, Charlotte, and Tryon. It seems to be absolutely 
necessary that they should be in a state of defence. In 
this purpose, nothing could be more effectual than the 
Congress sitting in Albany. This would oblige all the 
Tories, as they are called, to join, to say nothing of its 
being one hundred and fifty miles nearer the seat of 
action. My powder-mill will be set agoing, I hope, the 
beginning of next week. 
4 



26 LIFE OF EDWARD LIVINGSTON. 

" Mr. F 's* conduct appears unaccountable to me. 

Does he or does he not approve of vigorous measures ? 
I still expect much good from his counsels. I see, by 
the genuine speech of Lord North, that he disdains 

treating I am convinced they don't know America 

yet. I don't wonder at it ; we are hardly yet ourselves 
apprised of the power we aie able to exert, and that 
makes many afraid to join in the cause." 

The association here spoken of was one, the requisi- 
tion for which expressly excepted crown officers. " But 
he scorned to avail himself of that exception," his son, 
the Chancellor, afterwards declared, " and went volunta- 
rily and signed, being the first and, I believe, the only 
person holding a lucrative office in the government who 
associated." 

Judge Livingston's judicial independence, and coura- 
geous devotion to the cause of liberty, were put to still 
sharper tests. He broke up a practice which he found 
existing in the court, of granting general warrants to 
custom-house officers to search for contraband goods, — a 
practice which the provincial government is said to have 
had much at heart, and which had been sanctioned by 
the courts in several of the colonies. And in 1765, 
when Lieutenant-Governor Golden ordered the judges to 
send up their proceedings in a cause, — that of Force 
versus Gunningham, — after a trial and verdict, in order 
to their being reviewed by the Governor and Gouncil, he 
perceived at once the abyss to which the judicial power 
would be consigned by a compliance with the order ; and 
he, with his brethren, flatly refused to comply, assigning 
their reasons, which they published, as a warning to the 
people of their danger. They were afterwards served 
witii a peremptory order of the King, commanding them 

* Franklin's ? 



HIS MINORITY. 



S7 



to send up the proceedings ; but they absolutely declined, 
of course at the hazard of losing their commissions. 
This subject is mentioned in one of the Judge's letters 
to his father. " The King and Council," he wrote, " have 
determined the matter of appeal against us, contrary to 
the highest assurances that we had from all hands, that 
we should be successful in opposing it. We have, in 
consequence, been served with the order of the King and 
Council, and another writ to send up the proceedings ; but 
we remain firm to our principles and will not obey. We 
have reason to think that the order has been surrepti- 
tiously obtained. It does not appear that our agent knew 
that the affair was pending in council, for at the very 
time he was assured by the Secretary of the Board of 
Trade that the instructions to Sir Harry More would 
be so altered as to put an end to that controversy." 

From these samples of his correspondence it is plain 
enough that the father of Edward Livingston was one 
of those strong men who, in the conduct of life, have a 
double reliance, — upon Providence, and upon themselves. 
These extracts reveal, too, something of his humility, his 
affectionateness, his gentleness, and his serenity. With 
regard to his possession of these milder qualities there is 
much external evidence. His wife, after many years of 
widowhood, made a record of her testimony concerning 
him, in wliich, after dwelling upon his public acts and 
character, she attributes to him "an unequalled sweetness 
of disposition," and " a piety that guided every action 
of his life." One of his most intimate friends, William 
Smith, the historian, was accustomed to say, " If I were 
to be ])laced on a desert island, with but one book and 
one friend, that book should be the Bible, and that friend 
Robert R. Livingston." 



28 LIFE OF EDWARD LIVINGSTON. 

Margaret Beekman — for her maiden name continues 
to this day to be, in family history, her distinctive appella- 
tion — was a woman of a large and heroic mould. I 
presume that no woman not worthy to be thus character- 
ized ever reared such a family as hers. Of a plain and 
vigorous understanding, a genial heart, a cheerful temper, 
and a religious spirit unclouded by austerity, and well 
imbued with the political principles of her husband and 
father-in-law, she divided the most energetic devotion 
between her country, her family, and her affairs. Facts 
hereafter to be narrated will present her in a fuller and 
clearer light than any descriptive words. Surviving her 
husband almost a quarter of a century, bearing a brave 
part in the perils and sufferings of the time, and living to 
see the fulness of her eldest son's fame, as well as the first- 
fruits of the greatness of her youngest, she is, for a con- 
siderable period, a part of our subject. 



CHAPTER III. 

EDUCATION AND EARLY ASSOCIATIONS. 

Departure of General Montgomery for Canada — School at Esopus — 
First Constitution of New York — Robert R. Livingston — Burning of 
Esopus by the British — Destruction of the Family Mansion at Clermont — 
Princeton College — Dr. Witherspoon — Study of Law — Cultivation of 
Philosophy and Poetry — Lafayette — The Family at Clermont. 

EDWARD LIVINGSTON enjoyed, in one respect, a 
favorable opportunity for becoming a spoiled child. 
All the idolatry which his family had for any member was 
yielded to him from the first, as it was retained by him to 
the last. Yet the species of tyranny which that kind of 
worship engenders in common natures did not find any 
lodgment in his. His brothers and sisters have all borne 
testimony to that perennial sweetness of temper in the 
child and youth, which, in the man, was something more 
than philosophic, something more than simply Christian. 
Once, and but once, they said, when he was about eight 
years old, he was charged with violent conduct. The ac- 
cusation was brought by one of the sisters to the mother. 
" Then go in the corner," said Margaret Beekman. " I 
am sure you have been very naughty, or Edward would 
not have done so." 

The home at Clermont was rural and secluded, — a 
plain large mansion overlooking the Hudson from the 
forests and farming lands of the lower manor, with 
rooms for many guests, as well as for the large number 
of regular inmates. 

Judge Livingston had also a town-house in New York, 



\ 



30 LIFE OF EDWARD LIVINGSTON. 

where the family resided in winter. The journey between 
the two establishments was usually performed on board a 
sloop, and was an affair of days instead of hours. 

The greater part of what is now the State of New 
York was then a wilderness, the settlements being" mainly 
confined to the neighborhood of the Hudson and Mohawk 
rivers. 

Slavery was one of the institutions of the whole land, 
and a large number of negro slaves formed a necessary 
part of every household like that of Judge Living- 
ston. 

Edward was kept at home till after his father's death, 
which happened in December, 177-55 when he was in his 
twelfth year. Like all his brothers and sisters, he was 
of a sound and healthy constitution, and possessed from 
the first his full share of that marked vitality which seemed 
to destine them all for long life. What training and 
influences shaped the growth of his mind during this ten- 
der period will be apparent enough from a glance at the 
characters of the persons and at the circumstances already 
mentioned, especially when it is added that even his sisters 
were all politicians as ardent as intelligent. When he was 
but a year old, his brother Robert had, on the occasion of 
being graduated at King's* College, delivered a stir- 
ring oration in praise of Liberty,"!* in which he had given 
significant expression to the even then settled every-day 
sentiment of the entire family and its circle. And when 
the Revolution broke out, Robert was among its delibera- 

* Now Columbia. the graceful propriety of his pronun- 

+ " In particular, Mr. Living- ciation and gesture ; and many of 

ston, whose oration in praise of Lib- the audience pleased themselves with 

erty was received with general and the hopes that the young orator may 

extraordinary approbation, and did prove an able and zealous asserter and 

great honor to his judgment and abil- defender of the rights and liberties of 

ities in the choice of his subject, the his country, as well as an ornament 

justice and sublimity of his senti- to it." — Neiv Tor k Gazette of May 

ments, the elegance of his style, and 30, 1765. 



EDUCATION AND EARLY ASSOCIATIONS, gj 

tive leaders, while Harry was an officer in the field. In 
these surrounding's there was everything to produce an 
early awakening of the faculties, the sentiments, and the 
imagination of the boy. 

His first teacher was a clergyman of the Dutch Re- 
formed church and of Dutch ancestry, known as Domi- 
nie Doll. This gentleman was a widower, and had then 
an only child, a young lady of a frank and sprightly na- 
ture. With the daughter,* he lived for a time on the 
most friendly footing in the family of Judge Livingston, 
as tutor of the younger children. 

Edward was nine years of age when his eldest sister, 
Janet, was married to Richard Montgomery. This 
couple had once met, some years before, when he — 
then a Captain in the British army — was on his way 
to a distant western post. The meeting had left its im- 
pression upon both ; and after considerable distinguished 
service, he had returned to England, disposed of his 
commission, and emigrated to New York. The marriage 
soon followed ; and visions of long years of tranquil hap- 
piness upon a farm at Rhinebeck were entertained by 
the pair. But their projected house was unfinished when, 
attracted by his military reputation, the authorities of 
the United Colonies called upon him to serve as one of 
eight brigadier -generals in their new army. He ac- 
cepted reluctantly and sadly, declaring that " the will of 
an oppressed people, compelled to choose between liberty 
and slavery, must be obeyed." He met with no op- 
position from his wife. She accompanied him on the 

* Robert, the oldest son, on future Chancellor; and it happened 

leaving home one day for Albany, that he actually brought back as a 

inquired of Miss Doll, in his char- guest a gentleman who in due time 

acteristically gallant manner, " Well, married the Dominie's daughter, and 

what shall I bring home for you ?" with whom she led a happy life at 

" A good husband ! " was the lively Kinderhook. 
response. " Agreed," replied the 



S2 LIFE OF EDWARD LIVINGSTON. 

way to his final campaign as far as Saratoga, where she 
received from liis hps the last comforting assurance, 
" You shall never have cause to blush for your Mont- 
gomery." 

The parting of Janet Montgomery and her "soldier," 
as she always afterwards called him, and the preparations 
for the parting, were so melancholy as to leave a lasting 
impression upon the friends of both. Edward, in his old 
age, thus described a scene connected with those prep- 
arations, which had held a permanent place in his mem- 
ory. " It was just before General Montgomery left for 
Canada. We were only three in her room : he, my 
sister, and myself. He was sitting in a musing attitude, 
between his wife, vi^ho, sad and silent, seemed to be read- 
ing the future, and myself, whose childish admiration 
was divided between the glittering uniform and the 
martial bearing of him who wore it, when, all of a sud- 
den, the silence was broken by Montgomery's deep voice, 
repeating the following line, as one who speaks in a 
dream, — 

' " 'Tis a mad world, my masters," 

I once thought so, now I know it.' The tone, the words, 
the circumstances, all overawed me, and I noiselessly re- 
tired. I have since reflected upon the bearing of this 
quotation, forcing itself as it were upon the young sol- 
dier at that moment. Perhaps he might have been con- 
trasting the quiet and sweets of the life he held in his 
grasp, with the tumults and perils of the camp which 
he had resolved to seek without a glance at what he 
was leaving behind. These were the last words I heard 
from his lips, and I never saw him more." 

The elder brother, Harry Livingston, accompanied 
Montgomery to Canada, whence he was destined to re- 



EDUCATION AND EARLY ASSOCIATIONS. 33 

turn ill safety, though his youthful impetuosity was such 
that the General suffered many fears on his account, and 
sometimes heartily wished him home. 

Having thus lost, within a few months of each other, 
his father, his grandfather, and his celebrated brother-in- 
law, Edward was shortly placed at school in Albany, 
but very soon was transferred to Esopus, — now King- 
ston, — in the county of Ulster, on the west bank of the 
Hudson, eighteen miles from home, under the tutelar 
charge of his old friend. Dominie Doll, who had estab- 
lished a school at that place. Here he at once had to 
learn several lessons besides those set down in the good 
teacher's curriculum. In the first place, he was obliged 
to forego the comparative luxury of the family-table, — a 
discipHne from which he dated the facility with which, in 
after-life, he accommodated himself, whenever it was 
necessary, to the rudest fare. His friends were many 
times amused by his description of his first dinner at 
the Esopus farm-house where he had been placed to 
board. Potatoes and a piece of pork composed the 
whole bill of fare. The knife was put in the solitary 
disli, and the schoolboy invited to have his share. " I 
don't like pork ; we never eat it at home," was the re- 
sponse. " Very well, my little man," replied the host, 
" nobody obliges you to eat it." A potato, sadly accept- 
ed, furnished the scanty repast. The second day brought 
no variety. There, again, was the distasteful pork, 
against which the protest was somewhat weakened by a 
ravenous appetite. The third day fastidiousness suc- 
cumbed to hunger; and a course of pork and potatoes, 
varied by nothing more refined, was entered upon, and 
endured through the school term. 

No boy, I suppose, ever gets through his school-life 
without taking part, offensively or defensively, in a greater 
5 



S4< LIFE OF EDWARD LIVINGSTON. 

or lesser number of those conflicts which are miniatures 
of the controversies of men. The first, if not the only- 
one of these battles in which Edward engaged was 
fought soon after his appearance at Esopus. The occa- 
sion was the moral necessity of backing up a statement 
which he casually made among his fellows, to the effect 
that at Clermont they had an ice-house in which ice was 
preserved for family use through the summer, — a state- 
ment which one of the boys, because he had never heard 
of such a thing before, honestly but indiscreetly pro- 
nounced to be — a lie. 

Every Saturday he walked the eighteen miles to Cler- 
mont, and returned in the same manner every Monday. 
Of these weekly journeys he retained vivid and pleas- 
ing recollections to the end of his life, attributing to 
them the habit and love of walking which he ever after 
retained, and to which he, in a great measure, owed, as 
he believed, the health he preserved through that long 
course of intense and continuous mental labors which 
we are here beginning to trace. In these facts we can 
read a volume upon the character of the good and 
strong Margaret Beekman, who evidently had deter- 
mined that her youngest and favorite child should not 
suffer too much from the want of a father's masculine 
guidance. No wonder that she could afterwards point 
proudly to that child in playful but triumphant refuta- 
tion of the doctrine that women are not competent to 
educate sons. 

Esopus then had a population of about thirty-five 
hundred, and ranked as the third town in the colony. 
There the first " Convention of the Representatives of 
the State of New York " — having been elected to 
meet in the city of New York on the 8th of July, 
17765 and having, in order to avoid the neighborhood 



EDUCATION AND EARLY ASSOCIATIONS. 35 

of Lord Howe and his forces, held adjourned sessions 
at White Plains, Haarlem, Philipse's Manor, and Fishkill 
— sought refuge for its deliberations in February, 1777' 
And there, on the 20th of April, the first constitution 
of the State was adopted in the convention. 

Robert R. Livingston, seventeen years older than 
his brother Edward, but still under thirty, was a con- 
spicuous member of this body. That, together with his 
employment by Congress as one of a secret " Commit- 
tee for facilitating the Military Operations on Hudson's 
River," — in which capacity he was a constant, free- 
spoken, and welcome adviser of Washington, — prevented 
his signature to the Declaration of Lidependence, though 
he had labored with Jefferson's committee in revising 
the draught of that instrument. He performed a similar 
work in the New York convention ; and the new con- 
stitution, though adopted after deliberate and patient dis- 
cussion, was at last hurriedly printed and proclaimed. 
The printing was done at the ancient village of Fish- 
kill ; the proclamation was made in front of the Esopus 
court-house, the secretary of the convention standing 
upon a barrel, surrounded by the people while he read 
the paper. Such scenes, with all their concomitant ex- 
citements and lessons, divided with his books and school 
the daily attention of the young Edward. 

Thus Esopus became the first and temporary capital 
of the struggling, infant State. The first governor and 
leorislature chosen under the constitution met there in 
September. Their accommodations were not luxurious, 
nor were their duties of an easy sort. There was no 
greedy and corrupt lobby to beset their official virtue ; 
but they were encompassed by rough and primitive dan- 
gers, and pursued their deliberations 

" on the perilous edge 
Of battel." 



36 LIFE OF EDWARD LIVINGSTON. 

Burg-oyne w^as at the north, and Sir Henry CHnton at 
the south, planning- a conjunction, and a mihtary posses- 
sion of the whole line of the Hudson, with a view of 
cutting off' communication between New England and 
the rest of the country. In the attempted execution of 
this scheme, Clinton, in conjunction with Admiral Howe 
and Commodore Hotham, despatched Sir James Wallace 
up the river with a flying squadron conveying about four 
thousand men, commanded by General Vaughan. Be- 
yond the capture of forts Montgomery and Clinton, — 
the former commanded by the new Governor in person, 
the latter by his brother, — and the destruction of the cJie- 
vaux-de-frise^ boom, and chain which had been stretched 
across the river at that point, the result was noth- 
ing but a good deal of safe and cautious marauding. 
Boats, vessels, and mills were destroyed ; villages burned, 
houses fired upon, and neighborhoods incapable of resist- 
ance pillaged. The Governor and legislature were dis- 
lodged from Esopus with the people of that village, and 
the enemy thereupon plied the torch with such industry 
that only a few houses were left standing ; but the 
Governor, legislature, and people took refuge at Hurley, 
— a small village four miles distant, where the excitement 
of the day of flight was varied by the hanging of a 
British spy, named Taylor, within view of the conflagra- 
tion of Esopus. 

The effect of this expedition was to rouse and exas- 
perate the whole Whig population to the point of im- 
placability. Vaughan returned to New York in safety. 
Burgoyne, not so fortunate, surrendered his sword to 
General Gates, in the presence of their two armies, at 
Saratoga, on the 17th of October, only one day later 
than the sack of Esopus. 

The school of Dominie Doll was of course driven 



EDUCATION AND EARLY ASSOCIATIONS. 



37 



away with the Esopians, but, sharing the fortunes of the 
new government, continued its existence for a time at 
Hurley. Young Livingston had, in these events, occa- 
sion for an eccentric visit to Clermont. The house of 
his mother, in which he had been born, and in which his 
father and grandfather had lately expired, as well as 
that of his brother Robert, was among those marked for 
destruction by Vaughan's men on this expedition. At 
the very time, two British officers, a wounded captain, 
named Montgomery, and his surgeon, had been for 
some time hospitably entertained by Margaret Beekman at 
Clermont. They gratefully proposed to extend to the 
house the protection of their presence and influence. 
But the offer was politely yet firmly declined, on the 
ground that the widowed proprietor did not desire any 
such advantage over her neighbors and countrymen. 
The sturdy matron determined to evacuate Clermont, 
carrying off" what needful articles she might. A part 
of her furniture was buried, the remainder loaded in 
wagons ; and when warned that the enemy was ap- 
proaching and not many miles distant, she set forth on a 
weary journey eastward, accompanied by all her family 
and retinue of servants. The timeliness of this depar- 
ture was proved by a column of smoke which the party, 
after advancing a few miles, plainly saw rising from the 
flames of the mansion they had left. This scene was 
destined to recur to the memory of Edward, the young- 
est of the company, and to point an eloquent passage in 
a speech to be delivered by him twenty years later on 
the floor of the House of Representatives of the United 
States. If the reader would have further illustration of 
the robustness of Margaret Beekman's nature, let him 
picture to himself — what actually occurred — that high- 
bred dame, at the very moment of starting upon this 



33 LIFE OF EDWARD LIVINGSTON. 

journey, enjoying a hearty laugh at the figure made by a 
favorite servant, a fat old negro woman, perched in sol- 
emn anxiety at the top of one of the wagon-loads. 

The destination of the party was Salisbury, in Berk- 
shire, just beyond the border of Massachusetts, where 
they secured refuge in a house which it is said is still 
standing, and where they remained but a short time, the 
hasty retreat of Vaughan's command rendering Clermont 
a safe residence again. Mrs. Livingston, with her fam- 
ily, then returned to her home, and at once began the 
work of repairing its desolation. 

It was in the midst of all this tumult and danger 
that Edward Livingston snatched the learning which 
fitted him for college. He was entered a junior, at 
Nassau Hall, Princeton, in 1779. The business of the 
institution was in that year resumed, after several years' 
suspension, in the course of which a detachment of the 
army of Cornwallis had been quartered for a time in the 
college buildings, from which Washington had dislodged 
them on the morning after the Battle of Trenton. 

The President, Dr. Witherspoon, was an extraordi- 
nary man. His acquirements were large, his observation 
keen, his humor rich, his understanding vigorous, and 
his spirit bold. He combined the qualities of a learned 
divine, an eloquent preacher, a prolific writer, and a pro- 
gressive statesman. Born and educated in Scotland, the 
first forty-six years of his life were wholly spent in that 
country, chiefly in clerical, scholastic, and literary pursuits ; 
and he came to America but eight years before the 
Declaration of Independence, with the sole view of tak- 
ing the college under his charge. And such, probably, 
would have been the peaceful course of his subsequent 
career, but for the war which presently scattered the 
students to their homes or to the army. His occupation 



EDUCATION AND EARLY ASSOCIATIONS. 39 

being- thus temporarily gone, he betook himself to politics, 
and, adapting- himself completely to the situation of af- 
fairs, became a zealous and noted rebel and practical man 
of the time. His services, in and out of Congress, were 
of the most energetic and industrious sort. He soon 
became so prominent, that, as early as in July, 177^5 
he was one of three leaders — Putnam and Lee being 
the other two — selected for the honors of effigy-burning 
by the British soldiery under General Howe at Staten 
Island. He was a plain-spoken man ; and when ques- 
tioned, on his first appearance in Congress, in ITT^? 
whether he thought the colonies were ripe for indepen- 
dence, he answered, " Ripe ? Yes ; rotting." He was by 
nature an athletic disciple ; and if the body now distin- 
guished by the designation of '• muscular Christians " had 
been distinctively known in his time, he would undoubt- 
edly have proved himself one of its most respectable ex- 
ponents. He returned to Princeton in 1779, to repair 
the battered college buildings, renew the broken library 
and apparatus, regather the students, and put the institu- 
tion again on its feet. 

Young Livingston resided two years at Princeton, and 
was graduated in 1781? at the age of seventeen. He 
had but five fellow-graduates, only one of whom, Wil- 
liam B. Giles, of Virginia, was destined to reach any 
uncommon distinction. 

As to what his habits of study were up to this period I 
have not found any direct evidence, except his own state- 
ment, made long afterwards, that he had spent his time 
rather idly at school, and still more so at college, and 
that, as to the exact sciences, he passed them over with 
the carelessness natural to his age, learning only so much 
as was necessary to the obtaining of his degrees. But 
the reader, when he comes to examine, in another part 



40 LIFE OF EDWARD LIVINGSTON. 

of this work, the series of letters from father to son 
in which that statement occurs, will find that it is given 
with reference to a standard of industry which most 
scholars would consider severe, and that it is coupled 
with a profession on the part of the writer of being 
then " but an indifferent scholar," — an evidently candid 
profession, but clearly referring to a criterion which 
would leave few good scholars in the world of active 
men. In the same connection he adds, that, on mixing 
a little with the world, he was fortunate enough to dis- 
cover the defects of his education, and then began to 
remedy them, although he was much counteracted in his 
endeavors by his former habits of idleness and his new 
pursuits of pleasure. I infer, simply, that before leaving 
college he did not acquire those habits of intense appli- 
cation which he perfected afterwards and cherished to 
the end of his life. 

What his friends thought of his mind and his tastes 
at this early period is well indicated by a single sentence 
in one of John Jay's letters to Chancellor Livingston, 
written at Paris in 1783, after an absence of four years 
from this side the Atlantic. " I send you," it runs, 
" a box of plaister copies of medals : if Mrs. Livingston 
will permit you to keep so many mistresses, reserve the 
ladies for yourself and give the philosophers and poets 
to Edward." * That the latter disposition was not 
inappropriate will be evident to those who trace Mr. 
Livingston's career, and who examine his principal, even 
his latest performances. The distinctive culture of phi- 
losophy and poetry by a youth in these circumstances 
shows plainly an uncontrollable bent of nature. The 
reader, as he proceeds, will constantly observe a like 
irresistible force leading the man, even in the midst of ex- 

* Life of John Jay, pp. 174-181. 



EDUCATION AND EARLY ASSOCIATIONS. 4,1 

traordinary misfortunes, depressing cares, and real strug- 
gles, to reserve his best powers for philanthropic labors 
and studies. 

On leaving college, Edward immediately began the 
study of law, at Albany, in the office of John Lansing, 
afterwards the second of the New York chancellors. 
For the next two years the distractions incident to the 
war continued ; but this was not the sole nor the worst 
difficulty then in the path of the American law-student. 
The decisions of none of the cis-Atlantic courts had yet 
been reported, much less digested. There were yet no 
American treatises. The rules of law and practice were 
still to be shaped by the judges through the process of 
adapting principles and precedents from English juris- 
prudence to our new institutions and statutes. Under 
these disadvantages many great lawyers studied. James 
Kent, Alexander Hamilton, and Aaron Burr were among 
Livingston's intimate fellow-students. These, with others, 
were in the habit of meeting, at Albany, at least dur- 
ing one season, for animated discussions of legal topics 
and methods of study. 

Livingston was soon strongly attracted to the civil law, 
and thoroughly explored the Code, Institutes, Pandects, 
and Novels of Justinian, in the original, with some of the 
best commentaries upon them. In order to do this he 
was obliged, at the same time, to perfect by himself his 
knowledge of the previously neglected Latin. 

After the evacuation of New York by the British, in 
November, 1783, the winter residence of his family 
being in that city, he continued his studies there until 
January, 1785, when he was admitted to practice as an 
attorney. 

It was during the four years that intervened between 
his leaving college and his admission to the bar that he 



4/2 LIFE OF EDWARD LIVINGSTON. 

first learned the real art of study, — the division of the 
day, and the rigid devotion to each pursuit of the hours 
or minutes that belong to that pursuit. In his division 
his old acquaintances, the philosophers and the poets, were 
not forgotten ; general literature and novels had their 
hours ; and society, which he frequented freely, scarcely 
suspected him of being a student. A scrap of gilt-edged, 
Bath paper upon which at this period he wrote the follow- 
ing lines * has come to my possession, buried accidentally 
among draughts of more serious compositions, accumu- 
lated during half a century. 

" On Edward's table, emblem of his head, 
See cards and pamphlets, plays and law-books spread. 
Here lies a plea, begun with special care, 
Ending with ' Stanzas on Augusta's Hair.' 
Gilt poets there with ancient classics mix ; 
The ' Attorney's Guide ' lies close to ' Scapin's tricks ; ' 
Lo ! in the midst, a huge black lettered book 
With dust begrimed, ycleped Coke. 
Memento-like the Gothic volume lies. 
And still ' Reinember you're a lawyer ! ' cries ; 
Alas ! unheeded cries, its voice is drown'd 
By frolic Pleasure's more attractive sound ; 
She bids her roses in his fancy blow. 
And laughing cries, ' Remember you're a beau ! ' " 

At the same period he paid a hyper-scrupulous atten- 
tion to the mode in his dress, — a temporary taste which 
earned him a temporary title, that of Beau Ned, and 
the remembrance of which was to furnish him with a 
theme for occasional laughter to the end of his life. 

* Mr. Livingston always retain- period referred to in the text. This 
ed what he early manifested, a de- piece was afterwards given by him- 
cided poetical taste. But genius is self or some member of his family 
not indicated by any of his poetical to Mr. Gulian C. Verplanck, who, 
compositions which I have seen, while editor of the Analectic Mag- 
The best of these is a graceful trans- azine, as the successor of Irving, 
lation, in rhyme, of the Basium Pri- published it, as the production of an 
mum of the celebrated later Latin anonymous American poet, in that 
poet, Johannes Secundus, which he periodical, in the number for De- 
produced, as I suppose, at about the cember, 1814, pp. 517, 518. 



EDUCATION AND EARLY ASSOCIATIONS. 4,3 

Lafayette, soon after his first arrival in this country, 
contracted with the whole family of Margaret Beekman a 
particular intimacy, which lasted for life, sustained by a 
frequent correspondence during more than half a century. 
Many autograph letters of this illustrious man, addressed 
to Mrs. Montgomery as well as to Edward Livingston, 
are before me. They are written in English, and gener- 
ally their diction is perfectly free, vigorous, and correct, 
though they are marked by the occasional employment of 
Gallic idioms. Some of them will be transcribed in the 
course of our volume. The following sentences are ex- 
tracted from a long letter of the Marquis to Mrs. Mont- 
gomery, dated at Paris, February the 22d, I786. 

" I not to return to America, Madam ! I do assure 
you this idea would render me most miserable. To sever 
me from this fond hope would be half death to me. If 
born in France, I have been educated in America. So 
many friends there ; so many recollections at every step ! 
This year I am not able to go. But the year after this, I 
hope I shall, as I want to place a visit before the time 
when I will bring my son over to spend three years on 
your happy side of the Atlantic. He has been made a 
citizen of the United States, and he must go and learn 
on what principles he can deserve the flattering gratifi- 
cation." 

" Be so kind, Dear Madam, as to present my best and 
most affectionate respects to the ladies and the gentle- 
men of your beloved family. I feel as if I was one of 
them. Remember me often to them, and let my name 
be now and then pronounced in the family conversation. 
I heartily feel for John's misfortunes, which, added to an 
irreparable loss, must be too heavy indeed. I think a 
voyage with you will do him good, and I hope, as Ma- 
dame de Lafayette takes the liberty to entreat you with 



44. LIFE OF EDWARD LIVINGSTON. 

me, that your intended excursion to Europe mayn't be 
deferred." * 

The chivalric young foreigner produced, at the first, an 
ineffaceable impression upon the mind and heart of Edward, 
who made the most of his opportunity for cultivating a 
friendship destined to be as enduring as it was pleasing 
and honorable. Boy as he was, he was several times per- 
mitted to leave school to become a guest of the Marquis 
at head-quarters. How he succeeded in fixing the interest 
and regard of Lafayette, may be inferred from the fact 
that when the latter, at the close of the war, was about 
sailing for France, he had set his heart upon taking the 
youth with him, and had exerted himself to overcome the 
objections and refusal which had been interposed by Mrs. 
Livingston, who, after reflection, had declared that she felt 
that her son had work to do at home. He could hardly 
give up the plan ; and when his young friend had accom- 
panied him some distance on the road to Boston, whence he 
was to embark, he impulsively proposed still to take him 
along, to assume himself all the dereliction, and to insure a 
pardon from the mother, to be sued for from France. 
This strong temptation — for Edward's inclination ren- 
dered it such — was with some difficulty resisted. It is 
impossible here not to speculate upon the total change in 

* During Lafayette's triumphal inquired of Colonel Fish, " Where 
visit to this country in 1824, in Sep- is my friend Colonel Harry Living- 
tember, the steamboat James Kent ston ? " Soon afterwards, while the 
was chartered by the citizens of New steamer was at the Kingston dock, 
York to carry their illustrious guest Colonel Livingston, having crossed 
upon an excursion to Albany, stop- the river in a small boat from Rhine- 
ping wherever he might wish along beck, came on board. As soon as 
the river. On the way up, the party their eyes met, the two friends, — the 
spent a morning with General Mor- Marquis and the Colonel, — now old 
gan Lewis and Gertrude Livingston men, rushed into each other's arms, 
at their country-seat at Staatsburg, embraced and kissed each other, to 
and passed the evening festively at the astonishment of the Americans 
Clermont, being entertained by the present. The Colonel had served 
heir of Chancellor Livingston Af- under Lafayette in Rhode Island and 
ter leaving Staatsburg, the Marquis at Valley Forge. 



EDUCATION AND EARLY ASSOCIATIONS. 45 

fortune and fate which might have awaited the American 
boy, involved in the orbit of the young French nobleman, 
destined first to guide a mighty revolution, and then to be 
absorbed by it. But, though the careers of the two 
friends were thenceforth to be as distinct as their hemi- 
spheres, the younger continued to be the other's " Dear 
Edward " for upwards of sixty years. 

The characteristic vigor and spirit of the children of 
Margaret Beekman were as conspicuous in their amuse- 
ments as in their enterprises. They relate of Mrs. Mont- 
gomery that once, in advanced life, after entertaining all 
day a guest of the heavy sort, she expressed relief at his 
departure in an audible sigh. One of her nieces said to 
her, " Why, aunt, you have not much patience with dull 
people." " Ah, no, my dear," she answered, " I have 
never been used to them." To the same purpose is the 
testimony of Edward recorded, after many years of tur- 
moil and misfortune, in a letter to one of his life-long 
friends. " The account," says he, " you give me of Mrs. 
Du Ponceau has very much affected me. She is one of 
my earliest and best friends, and the remembrance of our 
early acquaintance connects itself with those scenes which, 
of all I have since gone through, have left the strongest 
and most pleasant impression on my mind. I allude to 
the time when our numerous family (of which she was 
always considered a daughter) were collected at Clermont. 
You were a witness to the harmony that united, to the 
gayety that inspired us under the auspices of that excel- 
lent mother who was never happy but when her children 
and her guests were so." 



CHAPTER IV. 

EARLY PROFESSIONAL CAREER. 

New York in 1785 — The Bar — Federal Hall — The Mayor's Court 

— James Duane — The Case of Rutgers 'versus Waddington — Richard 
Varick — Egbert Benson — John Sloss Hobart — Brockholdst Livingston 

— Burr and Hamilton — Early Professional Career of Edward Livingston 

— His Marriage — Election to Congress. 

THE city of New York retains hardly a trace of the 
features it wore in 1785. Its population and the 
area of its built-up portion are each forty times as great 
as they were in that year. Chambers Street was then 
a northern outskirt, beyond which the island was all as 
rural as the vicinity of Kingsbridge, except the village 
of Haarlem, Canal Street was a creek, Spruce Street 
a swamp, and the whole neighborhood of The Tombs, 
city prison, a fresh-water pond. Mayor Duane had a 
farm, through which ran a winding brook, where Gra- 
mercy Park is. The present Charlton Street passes the 
site of the house at Richmond Hill to which Aaron 
Burr carried his household gods every spring. Similar 
farms and country-seats abounded as far, or still farther 
south than these. Broadway was not paved or flagged 
above Vesey Street. The Park was a rough, unenclosed 
common. The Battery was the one fashionable place of 
promenade. The great fire of ITV^ had left a large 
blot upon the face of the city, and most of the houses 
which remained standing bore plain traces of the worse 
than careless occupation of the enemy's soldiery. No 
daily stage-coach as yet plied on the road to Albany, 



EARLY PROFESSIONAL CAREER. 



47 



and travellers between the two cities usually braved the 
perils and delays of sloop navigation on the river. The 
newspaper was an infantile institution, and showed only 
dubious sig-ns of inherent vitality. A leading sample, 
" The New York Packet," semi-weekly, — swelling with 
the Virgilian motto, " Tros Tiiriiisque mihi nullo discrim- 
ine agetur" — was a rusty little folio of four pages, and 
sixteen columns, five of which, including a poet's cor- 
ner, were devoted to news and miscellany, parading a 
frightful literary poverty, and the other eleven given to 
curious advertisements, in which buyers and sellers, bor- 
rowers and lenders, dry and wet nurses, and those who 
required the services of either, commonly directed their 
correspondents to confer with the printer, Mr. Samuel 
Loudon, who was at the same time printer to the State. 
Wall Street and the metropolis had but one bank, — 
the Bank of New York ; and of that institution a 
large proportion of the leading citizens were directors. 
The first of the annual city directories, not published 
till the following year, was a primer of eighty-two 
coarsely printed pages. 

Such facts, considered in connection with the present 
magnitude and splendor of New York, furnish lively 
illustration of the prodigious vitality which, repressed 
and for a time smothered by the war, yet existed in the 
young metropolis, ready to blaze up the moment of the 
joint establishment of ind^^pendence and peace. Immi- 
gration and building, all the branches of trade, and every 
description of business, started at once upon a growth 
which, to this day, has not ceased to appear magical. 

There were special reasons why litigation should not 
and did not, even at the first, lag behind the other de- 
partments of industry. The long military possession of 
the enemy j the losses arising from the suspension of 



48 LIFE OF EDWARD LIVINGSTON. 

rents, and damages done by loyalist tenants during a 
reckless occupation of houses ; the destruction or re- 
moval of records, and consequent indistinctness of many 
titles ; the processes for confiscation of property for tory- 
ism ; the swift mutation in the relative value of money, 
property, and securities, and the sudden tightening of 
pecuniary obligations, the sense of which had been loos- 
ened for some years, — gave rise to abundant questions, 
which could only be settled in the courts. 

The supply of first-rate abilities at the bar of New 
York was, at that time, commensurate with the demand. 
So small a community inevitably measured every candi- 
date for professional standing, and the unlearned or me- 
diocre aspirant stood at a fatal disadvantage among such 
competitors as Robert Troup, Egbert Benson, Brock- 
holdst Livingston, Melancthon Smith, Aaron Burr, and 
Alexander Hamilton. The roll of the city bar numbered 
less than forty members. Among the additions made 
to the list during the few years following were Josiah 
Ogden Hoffmann and James Kent. 

The courts were held in a building which stood at 
the corner of Wall and Nassau streets, where the Uni- 
ted States long afterwards erected their custom-house. 
The old edifice had suffered a good deal of mutilation 
during the military occupation of the city by the Brit- 
ish, and after the evacuation, having received alterations 
and repairs, became " Federal Hall." In it the oath of 
office was administered to the first President by Chan- 
cellor Livingston. 

The Mayor's Court, though an inferior tribunal, be- 
came, under the administration of Mr. Duane, the favor- 
ite and really most important forum. Eight had been 
the limited number of those who were allowed to prac- 
tice in this court; but in 1784* the restriction was re- 



EARLY PROFESSIONAL CAREER. 49 

moved, in favor of all attorneys and counsellors of the 
Supreme Court. It was in consequence of this change 
of policy, coupled with the high juridical reputation of 
Duane, that the Mayor's Court suddenly acquired by 
common consent a business and an authority scarcely 
contemplated by the statutes creating it. 

James Duane was connected with the Livingstons, 
having married the eldest daughter of Robert, third 
proprietor of the manor. He had practised law before 
the Revolution with great industry and success ; had 
been an active member of the revolutionary Congress 
and of the first constitutional Convention of the State, 
and an earnest advocate of the Federal Constitution ; 
and he attained such reputation and authority as a 
judge, that, after six years' service as Mayor, Wash- 
ington pressed upon him an unexpected appointment to 
the bench of the District Court of the United States 
for New York, which he accepted, and retained with 
increased distinction, till age and ill health, in 1794*, 
drove him into retirement. 

It was in one of the earliest causes tried in the 
Mayor's Court, before Duane, in the year 17^4, — the 
case of Rutgers versus Waddington, — that Alexander 
Hamilton, who had shown marvellous and precocious 
military and oratorical abilities, first demonstrated, at the 
age of twenty-seven, that he was a great lawyer. It 
was an action for damages for the use of premises in 
the city during the British occupation, brought by the 
widow of a Whig who had been driven from his prop- 
erty, against a British subject who had occupied it under 
permission from the enemy, — an action specially authorized 
by an act of the New York legislature, passed March 17, 
1783, which declared that occupation under any mili- 
tary order should be no defence in such a case. The 



50 LIFE OF EDWARD LIVINGSTON. 

defendant, nevertheless, pleaded the military possession 
of the city by the British, and authority to himself to 
use the premises for a part of the time from the com- 
missary-general, and from the Commander-in-Chief direct- 
ly for the remainder, together with the treaty of peace, 
which in terms relinquished and released all claims 
which the citizens of either nation might have against 
those of the other on account of damage done to the 
public or individuals during the war. The plaintiff de- 
murred to this plea, and upon the issue of law so pre- 
sented the cause was argued. The counsel for the plain- 
tiff were Messrs. Lawrence and Wilcox, Robert Troup, 
and the Attorney-General of New York, Egbert Ben- 
son. For the defendant, William S. Livingston, Morgan 
Lewis, and Mr. Hamilton appeared. The brunt of the 
argument was sustained by Benson on the one side, and 
on the other by Hamilton. The rights of the States, 
and the relations of their sovereignty and that of the 
Federal Government, were discussed in such a masterly 
and exhaustive way as to settle what thence became 
elementary doctrines upon those subjects. The decision 
of the Court was, that the license of the British com- 
missary-general was legally insufficient to protect the 
defendant from the plaintiff's claim for damages under 
the statute ; but that the military possession by the en- 
emy and the authority from the Commander-in-Chief 
constituted a perfect defence to the other portion of the 
demand, notwithstanding the statute, which, the Mayor 
held, could not have been intended to go to such a 
length as a repudiation of the treaty between the Gen- 
eral Government and Great Britain, and which, if that 
were its meaning, would be so far void, because contra- 
vening the Law of Nations, which the constitution had 
made the law of the State. The legislature and a 



EARLY PROFESSIONAL CAREER. 51 

portion of the people felt a good deal of dissatisfac- 
tion with this judgment, — a dissatisfaction which the 
former expressed in resolutions, and which the latter 
discussed in a public meeting, in whose proceedings an 
active part was taken by Melancthon Smith, a promi- 
nent lawyer and politician. 

Richard Varick was recorder of the city, and by vir- 
tue of that office, the Mayor's judicial colleague. He 
had just commenced the practice of law in the city when 
Independence was declared, whereupon he joined the 
army, in which he served with credit, reaching the rank 
of Lieutenant-Colonel during the war, and getting the 
judicial appointment at its close. He was a stately gen- 
tleman, of high character, austere views, and mediocre 
talents. He succeeded Duane in the mayoralty, and so 
presided in the court for many years. Two or three 
la\Ayers yet living speak of his judicial traits from per- 
sonal recollection. Their main reminiscences are that 
he gave pleasing bar dinners, and that he was given to 
reversing the humane maxim of the common law, and 
presuming a person accused to be guilty until his in- 
nocence was pretty clearly established. Public whipping, 
as a punishment for certain misdemeanors, was in his 
time authorized by the laws of New York. He was, I 
believe, the latest judge who pronounced this penalty 
here. Some of his sentences of this kind — and one in 
})articular, towards the end of his term — excited some 
popular indignation. He was finally, in 1801, removed 
from the mayoralty on political grounds. In the news- 
papers of the time it is chronicled, that, after his dis- 
missal from office, a culprit against whom he had pro- 
nounced a sentence alleged to be as illegal as it was 
severe, brought a civil action against him for the 
wrong, — an action which he was fain to compromise, 



52 LIFE OF EDWARD LIVINGSTON. 

without a trial, by the payment of five hundred dollars 
as damages. 

Egbert Benson was a very superior lawyer, not only 
in point of technical learning, but also with regard to 
the principles and philosophy upon which the law rests. 
In those principles and that philosophy he was, in the 
opinion of Chancellor Kent, more profoundly versed than 
any of his compeers, except Hamilton. It was in his 
office that Kent studied law. He had started in prac- 
tice at Red Hook, a little before the Declaration of In- 
dependence, after which he devoted himself to the Rev- 
olutionary cause. He was prominent in the work of 
framing the new constitution and government of the State 
of New York, and became the first Attorney-General 
of the State. He was a man of great industry and 
method, and acquired much curious miscellaneous learn- 
ing. He wrote an erudite memoir upon the names of 
places, which has been published by the New York His- 
torical Society. He was fond of literary labor, but in 
his style cultivated a sententiousness and brevity which 
often lapsed into or bordered upon eccentricity and ob- 
scurity. A mild sample of this peculiarity is famihar 
to the eyes of the New York bar, in the inscription of 
a marble slab which he erected to the memory of his 
friend. Judge Hobart, in the room of the city-hall first 
occupied by the Supreme Court. 

John Sloss Hobart appears to have shown no distin- 
guishing talent and no notable trait, but still to have 
possessed such an assemblage of qualities as gave him 
a leading and secure influence among his contemporaries. 
Without any regular legal education he went, in 17775 
upon the bench of the first Supreme Court of New York, 
from which he was, by the constitution, obliged to re- 
tire at the age of sixty years. Nevertheless, he was 



EARLY PROFESSIONAL CAREER. ^3 

afterwards appointed judge of the District Court of the 
United States for the District of New York, by Pres- 
ident Adams, to whose party his attachment was firm, 
if not bigoted. His judicial career was respectable. 
He had been a prominent actor in the Kingston Con- 
vention, and represented New York in the Federal Senate 
from February to April, 1 798 ; after which short sena- 
torial career his acceptance of the judgeship of the Dis- 
trict Court withdrew him from that body. On the 
whole, he appears to have been one of those either lucky 
or adroit steersmen who, in the voyage of life, are quite 
sure to leave many an abler fellow-sailor behind. 

Brockholdst Livingston — a kinsman of our subject 
— has been mentioned in his place in the first chapter. 
He was an accomplished scholar, a brilliant advocate, and 
a successful judge. Those who would like to see a 
sample of his general learning and his wit will find an 
extraordinary opinion which he delivered from the bench 
of the Supreme Court of New York, in the adjudged 
case of Pierson versus Post, by referring to S Caines's 
Reports, 175. The question before the court related to 
the rights of a hunter in the game he had started, and 
after long chase nearly captured, as against an interloper 
who, chancing to come by at the eleventh hour, killed 
and appropriated the animal. The decision of the court, 
resting upon strict law, was adverse to the meritorious 
Nimrod's claim for redress. Judge Livingston took 
the occasion to express his dissent from the conclusions 
of his brethren, where his dissent could do no harm, 
in an opinion of considerable length, in which the gravity 
of the ermine laboriously treads the verge of refined 
drollery. It is such an opinion as Charles Lamb might 
have prepared for hypothetical delivery upon the same 
state of fiicts, unhampered by any judicial responsibility. 



54f LIFE OF EDWARD LIVINGSTON. 

This was in 1805, only a year before Judge Livingston's 
promotion to the bench of the Supreme Court of the 
United States. 

An incident in Brockholdst Livingston's career illus- 
trates a remarkable change which the customs of New 
York have undergone. Li May, 1798, while he was 
practising law, he wrote, for the " Argus " newspaper, a 
humorous paragraph, relating to a meeting of political 
opponents assembled to praise John Adams and his ad- 
ministration. The point of the paragraph was, that the 
meeting was one of young men, presided over by Mr. 
Fish, a stripling of about forty-eight years, and graced 
by the presence of Master Jemmy Jones, another boy of 
sixty, — a proof of patriotic zeal on the part of the 
rising generation upon which the country was congrat- 
ulated. The indignation of the last-named of the two 
gentlemen thus ridiculed found expression in a demand 
for an explanation from the writer, made while the latter 
was walking, accompanied by his wife and children, on 
the Battery, — a demand ending in an assault with a 
cane. For this Mr. Livingston promptly challenged, 
fought, and killed Mr. Jones, and quietly returned to his 
family promenades, — a course which, if it did not ac- 
celerate, appears at least not to have retarded his ad- 
vancement. 

Central figures among the lawyers of the city at that 
period were two persons of small stature but gigantic am- 
bition, whose several fates attracted and have retained to 
this day a wonderful popular interest, — Aaron Burr and 
Alexander Hamilton. Their subsequent duel, in which the 
latter fell, produced as remarkable effects upon the man- 
ners of the time as upon the destinies of the parties. The 
result was an advantage to the fame of the fulling man 
and a fatal victory to the survivor. An encounter, in its 



EARLY PROFESSIONAL CAREER. 55 

main features of an every-day character, lifted the former 
into a sudden apotheosis, and hurled the other into complete 
outlawry. A provocation not less real than such provoca- 
tions as were ordinarily recognized by the code of honor 
which prevailed, a correspondence not more foolish than 
was the fashion, a combat not so revolting in its circum- 
stances as often took place between prominent persons 
about the same time without disturbing the nerves of the 
community, all came in one day to the knowledge of the 
public, and, presto ! change ! Hamilton was a godlike and 
immaculate creature, cut down in the flower of his virtue 
by a smooth and malignant being wearing the human shape, 
but of a power and wickedness hardly less than Satanic, 
— a judgment which maintains its hold upon the popular 
mind to this day. In this judgment there was a double 
exaggeration. Hamilton was not a saint, by any means, 
nor was Burr quite a Mephistopheles. The latter had 
commenced his downward course, but he was still Vice- 
President of the United States with at least a chance of 
reaching the higher office, and with the mental resources 
which had enabled him to rise, undiminished. He had 
some redeeming traits; but he was radically dishonest, prof- 
ligate, and criminally aspiring. The penalty he paid was 
not so absolutely unjust as it was out of proportion to his 
sins, when compared with the punishment which the world 
commonly metes out to similar, even the worst offenders. 
In politics and in life, his principal faith was in the power 
of subtle and sleepless intrigue ; and when that power de- 
serted him, his fall was like Lucifer's. There is a logical 
fitness in the eventual overthrow and ruin of such a man ; 
but the altogether unusual rancor with which he was 
hunted by public opinion for thirty-two years, while he 
lived, and the pertinacity of reprobation with which his 
memory — as a foil to that of Hamilton — has ever since 



56 LIFE OF EDWARD LIVINGSTON. 

been visited, have been nothing less, in a good degree, 
than a notable triumph of gossip and a caprice of his- 
tory. 

Edward Livingston began his professional career in 
this field and among these competitors. That he gained 
at once a respectable, and soon an eminent standing, would 
prove both his early industry and his uncommon parts. 
At the starting-point he signally deviated from the usual 
history of great lawyers. Poverty, obscurity, threadbare 
patience, and irrepressible tenacity of will are, much of- 
tener than otherwise, the combination which leads through 
special triumphs to high forensic reputation. No other 
profession or art exacts from those who would excel in it 
more absolute devotion than the law. Affluence and ease 
are clogs upon that kind of devotion. He who reaches the 
highest rank as a lawyer, in spite of an easy start, must 
be gifted with an extraordinary bent and an extraordinary 
will. Mr. Livingston did reach the very pinnacle, as we 
shall see, without undergoing the customary early struggle 
against dire necessity. He had a large family connection 
in the city, as well as in the State. His brother, the Chan- 
cellor, had practised there with reputation for several years 
preceding the Revolution. He had other relatives in the 
profession, and still others who were active and opulent 
merchants, and his family name was a strong influence in 
the community at large. His own expectations as to 
hereditary property, if not large, were something and in- 
definite ; and he was entirely beyond any pressure of im- 
mediate want. On the contrary, he was the petted young- 
est child of a large, social, and even gay household. The 
town-house which had been the w^inter residence of his 
father when living, continued in the possession of his 
mother during all these post-Revolutionary years; and 
here Edward lived with her, and kept his office. The 



EARLY PROFESSIONAL CAREER. 



57 



house was No. 51 Queen Street, which was a part of 
the present Pearl, above, and beginning at, Wall Street. 

The hospitable city drawing-room of Margaret Beek- 
man was frequented by many brilliant men, including most 
of the members of the bar just mentioned, attracted by 
the society of Mrs. Montgomery and of her sisters yet 
unmarried ; and the house was much visited by officers and 
gentlemen of foreign birth, particularly Frenchmen. All 
the family conversed fluently in the French language, and 
since their intimacy with Lafayette, had been especially 
inclined to cultivate the acquaintance of his friends and 
countrymen. 

The staple of conversation in this set was not small- 
talk, but included earnest discussions of politics and litera- 
ture. Articles upon such topics, written for the public 
papers, were often read there by their authors before pub- 
lication. But the tone of this society was not always 
solemn; and whatever was ludicrous was seldom passed 
over without due attention. One evening the company 
listened to a eulogy upon Washington, read by a foreigner 
but written in English, so full of unnaturalized idioms that 
the performance was received at first with smiles, and 
finally with peals of inextinguishable laughter. 

Mrs. Livingston invariably left the company and re- 
tired to her own apartment at ten o'clock, after which 
Mrs. Montgomery and some of her most habitual guests 
were fond of a game of whist, — a game not interdicted 
by the pious old lady, but which, in deference to her tastes, 
they never commenced in her presence. Inquiring on one 
occasion of a guest, who was a relation and a judge, how 
late it was, and being told that it was ten o'clock, she 
playfully replied, " Ah, Maturin, is it not always that 
hour by your watch 1 " and laughingly retired. 

The good old lady was a close observer of society in 
8 



58 LIFE OF EDWARD LIVINGSTON. 

the city. To an intimate friend, Mr. Vanderkemp, she 
wrote from town, in 179^, — " This place is all gayety and 
festivity, — parties every night in the week, — fortunes 
tumbling in the laps of very many people in so rapid a 
manner as was never dreamt of before. In this flow 
of riches dissipation abounds. Gaming is carried on to 
a great extent, and large sums lost and won. A gentle- 
man from Philadelphia is sitting by me, who relates that 
Mrs. K. took home four hundred dollars won here at the 
card-table in one sitting. Surely these are great evils. 
In a retrospective glance at all the great empires of by- 
gone ages, cannot we date their downfall and departure 
from public virtue and patriotism to the period when 
wealth and power abounded] Luxury and dissipation 
with gigantic strides then overturned all that had been 
achieved by their virtuous fathers, and anarchy and ruin 
followed. These are examples Americans ought never 
to lose sight of, and they must make them tremble for 
our infant empire." 

If Edwai'd, whose disposition was always social, was, 
in these circumstances, tempted on the one hand to 
forego in any degree that intense application which ne- 
cessarily precedes success at the bar, he was stimulated 
on the other hand by the expectations which the family 
had formed in his behalf. They were proud of his talents, 
and anxious for their practical display. He managed 
without neglecting society to include in his professional 
reading a profounder study of the Roman law, at the 
same time that he gave much attention to general lit- 
erature, and especially to the still further perfecting of 
his acquaintance with several ancient Greek and Latin 
authors. 

On the fly-leaf of his Longinus he wrote, early in 
this period, the following lines : — 



EARLY PROFESSIONAL CAREER. 59 

" Longinus, give thy lessons o'er ; 

I do not need thy rules : 
Let pedants on thy precepts pore, 

Or give them to the schools. 
The perfect beauty which you seek, 

In Anna's verse I find ; 
It glows on fair Eliza's cheek, 

And dwells in Mary's mind." 

The three ladies here celebrated were the daughters 
of Charles McEvers, Esquire, a merchant of New York. 
Their beauty and accomplishments were such as to make 
the above compliments not mere empty flattery. The 
oldest, Mary, was Edward's choice, and they were mar- 
ried on the lOtli of April, I788. She was a person of 
a striking and refined appearance, and known for the 
sterling and sturdy character of her religion and virtues. 
The mutual inclination of the parties was seconded by 
the approbation of both families, and the alliance was 
happy in every way. 

Of this period, extending to the year ITQ^*, little rel- 
evant to our subject remains to be said. Mr. Livingston, 
leading a life of continuous labor, study, and perfect 
domestic happiness, grew steadily in reputation, until, at 
the age of thirty, he was eminent in his profession, es- 
pecially as an advocate, distinguished for an easy, copious, 
and polished oratory, a dignified and courteous demeanor, 
and a steady and influential character. The even tenor 
of the course just described had met with no variation 
for nine years, except that during the popular struggle 
which resulted in the adoption of the Federal Constitution 
he had felt a lively interest and had taken an active part 
in favor of the measure, and had all the while cultivated 
a standing and influence in the then forming Republican 
party, — a thing, with his family connections to aid his 
own exertions, very easily managed. This led, in 1794-, 
to the interruption of his professional career, in his 



QQ LIFE OF EDWARD LIVINGSTON. 

nomination and election as a Representative in Congress. 
On this event, his mother, being congratulated by her 
friend, Mr. Vanderkemp, wrote in reply, " I thank you 
for your good opinion of my son Edward's election. 
If high and virtuous principles joined to a clear head 
can recommend him to the confidence of his fellow-cit- 
izens, he will assuredly enjoy it." 



CHAPTER V. 

SIX YEARS IN CONGRESS. 

A Political Canvass in 1794 — Eminent Men in the House of Repre- 
sentatives — Andrew Jackson — Address to the President — Trials of 
Randall and Whitney — Exertions in Behalf of American Seamen — De- 
bates on Jay's Treaty — Lafayette at Olmutz — Establishment of Naval 
Department — Alien and Sedition Measures — Speech against the Alien 
Bill — John Marshall — Debate on the Case of Jonathan Robbins — 
Early Attention of Mr. Livingston to the Condition of Penal Laws — Elec- 
tion, in the House, of Jefferson to the Presidency. 

MR. LIVINGSTON'S election, as a member of the 
fourth Congress of the United States for the city of 
New York, took place in December, 1794< ; and he was 
reelected, in 1796 and 1798, to the two following Con- 
gresses. The State of New York then had ten members 
in the House of Representatives, and the city of New 
York constituted a congressional district. In the first of 
these elections John Watts was his competitor ; in the 
second, James Watson ; and his own kinsman, Philip 
Livingston, in the third. The contest on either of the 
first two of these occasions was not a very polite warfare. 

I. Mr. Watts was the member for the same district in 
the third Congress. He was a partisan of the Adminis- 
tration, and had voted industriously to sustain all its meas- 
ures. He was of good family, but his talents were not 
shining, and he is not recorded as having articulated 
anything but " aye " and " no " during his congressional 
career. His friends admitted he was no orator, but 
claimed that he was all the better voter on that account ; 



62 LIFE OF EDWARD LIVINGSTON. 

while they gave his young rival credit for showy parts, 
and thence argued that he was not so safe a legislator. 

The machinery for the nomination of candidates was 
not then such a complicated mystery as it has since grown 
to be. Party organization in this country was not yet a 
science. Regularity came to be understood afterwards. 
There was no Convention, as the term is now used ; no 
delegates with credentials, and no contested seats. But 
the friends of each candidate met, by some unrevealed 
arrangement, at a tavern, and, placing one of their num- 
ber in the chair, made their nomination in a series of 
resolutions of a vague character, indicating rather a per- 
sonal preference than definite political views. In chron- 
icling the proceedings, one formula served both parties. 
Each report stated, that, " at a meeting of a respectable 
number of citizens, at Hunter's hotel, on " such an even- 
ing, " for the purpose of considering of a proper candi- 
date to represent this district in the next Congress, the 
following resolutions were passed," etc. The newspapers 
printed the accounts in the same words, and left their 
readers to learn, by further investigation, how the candi- 
dates differed in principles and party associations. 

But all this was soon made clear enough ; for though 
parties were not yet nominally much organized or defined, 
all men were taking sides in earnest with or against the 
administration, and the terms Federalist and Republican 
were already beginning to have pretty distinct significa- 
tions. Livingston was a Republican in nature, in opinion, 
and in associations. Watts was a Federalist, and, during 
the canvass, was accused by his opponents of having been 
a Tory in the Revolution. 

Little was said or written concerning the political char- 
acters of the candidates, but much was said and written 
relating to their private characters. An anonymous par- 



SIX YEARS IN CONGRESS. 63 

tisan, over the signature of " Senex," made, in a com- 
munication to the " Daily Advertiser," an insidious but 
most virulent attack upon Livingston, by declaring that 
the character of Watts was unexceptionable ; that his 
property had not been reduced by extravagance, nor 
swelled by extortion ; and that he possessed the merit 
of not being a pretended bankrupt nor a speculator. 
Tlie writer begged electors to beware of undue admira- 
tion for a babbling eloquence, and to bear in mind that 
the tongue of Cicero, the discernment of Locke, and 
the fancy of Shakspeare, blended together, if accom- 
panied by a corrupt and wicked heart, only furnish the 
means of becoming more eminently mischievous. The 
tirade was wound up by a quotation from Cicero's de- 
nunciation of Catiline. 

Mr. Livingston published, over his own name, a digni- 
fied note to the editor, in which he referred to the commu- 
nication of " Senex," and to oral slanders of similar but 
more direct import, which he understood were passing 
from mouth to mouth ; and informed those who were not 
personally acquainted with him that he had suffered some 
pecuniary ill-luck and embarrassment, but that he had 
contrived to meet all his obligations honorably and prompt- 
ly, and, especially, that he had never settled any debt for 
less than its full amount. But he had a champion of less 
temper, "A Plebeian," who published, in "Greenleaf's 
Journal," a vehement answer to " Senex," accusing him of 
outrageous malice and cowardice, and offering, if he would 
divulge his real name, to impart to him an impressive 
lesson in good manners, such as, in " A Plebeian's " opin- 
ion, he plainly needed and richly deserved. 

The city was then divided into seven wards, in each of 
which, except the second and third, Mr. Livingston led 
his competitor at the election. The whole number of bal- 



Q4f LIFE OF EDWARD LIVINGSTON. 

lots cast was 3,481 ; of which 1,84^3, or a majority of 
205, were for Livingston. 

The new member first took his seat in the House of 
Representatives at Philadelpliia, on the 7th of December, 
179-5. He was not one of those forward orators who 
make half a dozen speeches on the day of their first ap- 
pearance in a legislative body, and so forfeit all hope of 
influence in their new sphere ; but, though entirely con- 
scious of his powers, he was rather sparing of their dis- 
play, and acted like a man whose aim was as much to 
save a reputation as to gain one. The first time he 
spoke, in proposing an important motion which was car- 
ried, he declared himself such a novice in parliamentary 
proceedings as not to know whether he was in order or 
not. 

Of course, Mr. Livingston was in the opposition, 
under both Washington and Adams ; but his tone in oppo- 
sition was always dignified and moderate, which is more 
than can be said with respect to that of his party at 
large on the floor. In a very short time, he had acquired 
such weight in the House as has not often attached to 
so young a member. 

The most notable men then in the House of Repre- 
sentatives were Fisher Ames and Theodore Sedgwick of 
Massachusetts, Albert Gallatin of Pennsylvania, and Wil- 
liam B. Giles and James Madison of Virginia. Andrew 
Jackson was a representative in that Congress from the 
woods of Tennessee, — the first and then sole member 
from that State ; but he was not elected till the autumn 
of 1796, and he first took his seat on the 5th of Decem- 
ber in that year, it being the first day of the second 
session. 

Early in each session, the whole House in a body 
called on the President, and presented an address in an- 



SIX YEARS IN CONGRESS. 65 

swer to his speech at the opening of both Houses. On 
each occasion, Mr. Livingston thought the address as 
prepared was too undiscriminating in praise of the Ad- 
ministration, and he was in favor of quahfying the ex- 
pressions accordingly. The last time, he and Jackson 
voted together in a small minority against the address 
as it was carried. 

In December, 179-5, the trials of Robert Randall and 
Charles Whitney before the bar of the House were 
commenced. The charge was a breach of privilege in 
attempting to bribe members. The proceedings occupied 
considerable time, and brought out explanations from 
a large number of Representatives, which showed that 
Randall, having a scheme for purchasing from the Gov- 
ernment, at a nominal price, the wilderness which has 
since been transformed into the State of Michigan, naive- 
ly supposed that the best as well as most direct way of 
achieving his purpose was to take in a clear majority 
of both Houses of Congress as partners ; and he accord- 
ingly broached the subject to quite a number of the most 
influential members before he was arrested. After he was 
brought to the bar, a committee of privileges, consisting 
of seven members, was appointed, and instructed to con- 
sider and report the proper mode of proceeding. Mr. 
LivintTston was selected as one of the committee. The 
accused were allowed to appear by counsel, and the accus- 
ing members reduced their several statements to the form 
of affidavits, and submitted to cross-examination. Mr. 
Livingston took but little part in the discussions to which 
the case gave rise ; but at the close of the trial of the prin- 
cipal offender he brought in two resolutions, — the first 
declaring Randall guilty, and the second directing that he 
should be called up to the bar, reprimanded by the 
Speaker, and recommitted until the further order of the 
9 



66 LIFE OF EDWARD LIVINGSTON. 

House. The resolutions were adopted, and carried into 
effect. 

The case against Whitney was not so clear. He was 
interested in the scheme, but in the business of opening 
the project to members of Congress had been either more 
circumsj)ect or more indolent than Randall; so that the 
evidence against him was insufficient to convict him, and 
he was, by resolution of the House, discharged. Living- 
ston voted for the discharge, on the ground of a want of 
legal evidence upon which to riest a conviction of the 
prisoner ; though he confessed that the impression on his 
mind was that both Randall and Whitney were guilty. 
" They have not been in good company," he said. " I do 
not like the proposal they have made to members the 
better because it originated with British merchants. 
' Timeo Danaos et dona ferentes.^ I dread these Britons 
and the gifts they bring." 

In February, 1796, the young member originated in 
the House a measure which evinced the early bent of his 
character towards active philanthropy. It was a measure 
for the protection of American seamen, who had been 
extensively impressed into the service of foreign powers, 
especially that of England. He complained eloquently 
of the apathy of the Government on the subject, and de- 
clared that he should always think it his duty to strive 
to obtain for this ill-treated body of men some relief. He 
succeeded, not without opposition, in procuring a refer- 
ence of the subject, and, afterwards, the passage of the 
act of May 28, 1796. 

While the report of the committee was before the 
House, Mr. Livingston made the following remarks, 
which show the nature of the opposition he met with in 
this endeavor, and the spirit with which he encountered 
it : " On the introduction of this business into the House, 



SIX YEARS IN CONGRESS. QJ 

it was said that a young member had thrown obloquy on 
the Government. I uttered nothing but facts. I said 
that the (Hstressed American seamen had for five years 
looked in vain for relief. The Government may have had 
prudential reasons for its conduct. I thought it time, 
however, the subject was attended to. It is true, I am 
young; but I am not inattentive to the public business, 
and I shall always hold it my duty to persevere in such 
measures as appear to me calculated to promote the 
public good ; nor shall I be deterred from engaging in 
a business because it may not have been attempted 
before, for that principle would shut out all improve- 
ment." 

When Livingston had been three months in his seat, 
an occasion arose for the display of his powers. The 
House was called upon to make the appropriation re- 
quired to carry into effect the treaty with Great Britain 
of 1794', the work of Mr. Jay. The treaty had given 
rise to great bitterness and excitement in Congress and 
throughout the country. In the House, the opposition 
was all but sufficient to defeat the appropriation, though 
the amount was only ninety thousand dollars. The dis- 
cussions there occupied the best part of March and April, 
1796. They were divided into two distinct debates, each 
consuming about a month. The first began on a prelim- 
inary resolution offered by Mr. Livingston, calling on the 
President to lay before the House a copy of the instruc- 
tions to Mr. Jay, together with the correspondence and 
other documents relative to the treaty, excepting such 
as any existing negotiation might render improper to be 
disclosed, and continued after that resolution had passed 
and the President had refused to comply with it, upon 
further resolutions brought forward by Mr. Blount of 
North Carolina, protesting against the refusal. The 



68 LIFE OF EDWARD LIVINGSTON. 

second was upon a resolution making the appropriation 
for carrying the treaty into effect. 

These two debates brought out all the intellect and all 
the eloquence of the House. Uncommon refreshment is 
to be found in turning to these discussions from perusing 
the usual parliamentary efforts of the statesmen of our 
era. A large number of orators, whose names oblivion 
has since overcome, vied in wisdom, temper, and eloquence 
with such men as James Madison, William B. Giles, 
Theodore Sedgwick, and Fisher Ames. The celebrated 
Bostonian delivered, on this occasion, what is known as 
his greatest speech. 

The steady pertinence of all that was said on the floor 
to the exact matter before the House, notwithstanding the 
excitement which filled the atmosphere, was marvellous. 
In the course of thirty-two speeches there was not, I 
believe, one departure from the question. It was, 
throughout, a fine clash of genuine convictions as to 
the relative rights and obligations, under the Constitution, 
of two principal branches of the Government. 

Mr. Livingston opened the debates with a general 
statement of the views which influenced him in brinoingf 
forward his resolution. He desired the information, to 
enable the House to take whatever action might seem fit 
in the light of the information when obtained. If it 
should show that the officers who had negotiated the 
treaty ought to be impeached, then their impeachment 
would turn out to be one of the ultimate objects of the 
call for papers. Such a purpose could not be definitely 
declared or entertained by the House until the papers were 
seen. The House, as the accusing organ of the govern- 
ment and guardian on every occasion of the country's 
rights, was entitled to the information, for the purpose 
of elucidating the conduct of the officers. But he placed 



SIX YEARS IN CONGRESS. gg 

the demand mainly upon the broad ground that the House 
was vested with a discretionary power of carrying the 
treaty into effect or refusing it sanction. 

The members took sides at once, and spoke alternately, 
for and against the resolution, from the 7th till the S4th 
of March. Gallatin, Madison, and Giles were among 
the earliest and most strenuous supporters of the resolu- 
tion ; Sedgwick, and John Williams of New York, were 
conspicuous in opposition to it. All these and several 
others had delivered very elaborate arguments upon the 
question before Livingston rose, on the 19th of March, 
to make his principal effort. 

The delivery of this speech occupied nearly a day, 
and it was a wonderful performance for so young a man 
and a statesman so inexperienced. A reader of all that 
was said on both sides of the question, if ignorant of the 
fame of any of the orators, would pronounce this one 
to be the Nestor of the debate. There is no sign of 
youthful ambition in the style or in the matter. The 
fruits of earnest research and reflection, aided by a wealth 
of constitutional and historical learning, are set forth by 
him in an easy diction, and in a wise and quiet tone 
worthy of a legislative patriarch. The following lively 
passage, however, exhibits a fine and rapid blending of 
argument, eloquence, humor, and dignity : — 

" Thus, to whatever source of argument we refer, we 
find the constitutional power of this House fully estab- 
lished ; whether we recur to the words of the Constitu- 
tion, where the power is expressly given and is only to 
be lost by implication ; whether we have recourse to the 
opinions of the majorities who adopted the Constitution, 
to the uniform practice under it, to the opinions of our 
constituents as expressed in their petitions, or to the 
analogous proceedings in a government constructed, in 



^0 LIFE OF EDWARD LIVINGSTON. 

this particular, like our o\yn. Yet, after all this, we are 
told that if we question the supremacy of the treaty- 
making power, we commit treason against the constituted 
authorities, and are in rebellion against the government. 
These are grave charges, and made in improper language. 
I have not been so long in public life as those gentle- 
men who make them, but I will boldly pronounce them 
unparliamentary and improper. Besides, this language 
is wrong in another view : it may frighten men of weak 
nerves from a worthy pursuit. For my own part, when 
I heard the member from Vermont compare the authority 
of the President and Senate to the majesty of Heaven, 
and the proclamation to the voice of thunder ; when he 
appealed to his services for his country, and showed the 
wounds received in her defence ; when he completed his 
pathetic address by a charge of treason and rebellion, 
I was for a moment astonished at my own temerity ; his 
eloquence so overpowered me, that 

' Methought the billows spoke and told me of it, 
The winds did sing it to me, and the thunder. 
That deep and dreadful organ-pipe, pronounced ' 

the charge of treason. I was, however, relieved from 
this trepidation by a moment's reflection, which convinced 
me that all the dreadful consequences arose from the 
gentleman's taking for granted that which remained to 
be proved. He had only assumed that the measure was 
unconstitutional, and the rest followed, of course. From 
my soul, I honor the veteran who has fought to establish 
the liberties of his country. I look with reverence on 
his wounds, I feel humbled in his presence, and regret 
that a tender age did not permit me to share his glorious 
deeds. I can forgive everything that such a man may 
say, when he imagines the liberty for which he has fought 
is about to be destroyed ; but I cannot extend my charity 



SIX YEARS IN CONGRESS. Jl 

to men who, without the same merits, coolly reecho the 
charge." 

The drift of this argument, and of the other efforts 
on the same side of the question, was that the organic 
provision that " the Constitution, the laws made in pur- 
suance thereof, and treaties made under the authority 
of the United States should be the supreme law of the 
land," was intended as an enumeration, descriptive of the 
relative force of Constitution, laws, and treaties. The 
first in authority was the Constitution, which no other 
act could operate on. The second in order were the 
laws made in pursuance of the Constitution; and the third 
were treaties, when they contravene neither the Consti- 
tution nor the laws. The last must be subordinate to 
each of the otlier two, as would be reasonable, or else 
override both, as would be absurd. This view of the 
subject was enforced by an elaborate examination of the 
nature and object of the treaty-making power, and its 
analogy to that vested in the Crown by the British con- 
stitution, under which several instances were cited of the 
practice of Parliament, by virtue of its general legislative 
authority, to give or withhold its sanction to treaties 
concluded by the King. And besides, cases were adduced 
in the then very brief history of our own government, 
in which, as Mr. Livingston asserted, the discretion of 
the House of Representatives over the subject of carry- 
ing treaties into effect had been recognized by the Presi- 
dent, acquiesced in by the Senate, and acted upon by the 
House. 

The question was taken on the 24th of March, when 
the resolution was adopted by a vote of 62 yeas to 37 
nays. On the 30th, the President responded to the call, 
in a courteous message, in which he refused to com- 
ply witli the resolution, on the ground that to admit a 



72 



LIFE OF EDWARD LIVINGSTON. 



right in the House to make such a demand would be 
the establishment of a dangerous precedent. Such a 
right he distinctly denied. The nature of foreign ne- 
gotiations, always requiring caution and sometimes de- 
pending on secrecy for their success, and the inconvenient, 
dangerous, or mischievous effect which publicity might 
often exert on future as well as on unfinished negotiations, 
had made necessary the express provision of the Consti- 
tution, vesting the treaty-making power in the President, 
with the advice and consent of the Senate only. The 
message declared that it did not occur to the President 
that the inspection of the papers asked for could be 
relative to any purpose under the cognizance of the 
House except an impeachment, and that such a purpose 
the resolution failed to express. The grounds of the 
presidential construction of the clause in question were 
set forth with care and in full in the message, which 
embodied the substantial points of all that the cham- 
pions of the Administration had said in the House in the 
discussion of the resolution. 

The message was referred to a committee of the whole 
House. After several days' further debating, two reso- 
lutions were carried, by 57 yeas against 85 nays : the 
first disclaiming any agency in the making of treaties, 
but insisting that it is the right and duty of the House 
to deliberate on the expediency or inexpediency of carry- 
ing into effect a treaty which stipulates regulations on any 
of the subjects submitted by the Constitution to the 
power of Congress, and depends for its execution on a 
law or laws to be passed ; the second declaring that it 
is not necessary to the propriety of any application from 
the House to the Executive, for information to which the 
House is entitled, that the purpose for which such in- 
formation is sought should be stated in the application. 



SIX YEARS IN CONGRESS. <Jg 

Having undertaken to define its rights in such cases, 
the House proceeded to consider whether tlie appropria- 
tion needed to carry out the treaty should be made. 
The debate which followed occupied sixteen days. It was 
in it that Mr. Ames made, in favor of the measure, the 
finest recorded display of his powers. Madison, Gallatin, 
and Giles labored with their party to defeat it. Living- 
ston took no part in the discussion, but voted against 
the appropriation, which, on the final division, was carried 
by the nice vote of 51 yeas against 48 nays. 

On the last day of the second session, March S, 1797? 
a resolution was brought forward in the House, recom- 
mending some kind of interposition by the President in 
behalf of Lafayette, then at Olmutz. Mr. Livingston 
spoke with much feeling and eloquence in support of the 
resolution, which was nevertheless lost, only twenty-five 
members voting for it. Washington had considered the 
subject of official exertion towards the release or relief 
of our country's noble and early friend, and had con- 
cluded that such exertion would be inexpedient and 
useless. Unofficial eflforts were tried, but proved vain ; 
and the deliverance of the illustrious captive, having 
been denied by Austria to the entreaty of Washington, 
was finally yielded to the persuasion of Napoleon's 
arms. 

n. The second election of Mr. Livino^ston to Congress 
was by a majority of 550 votes, the seventh ward of 
the city having been transferred to the Westchester 
district. The celebrated De Witt Clinton was secretary 
of the meeting at which the nomination was made. The 
canvass was more spirited than the former one. The 
candidate had earned, or at least now incurred, the 
bitter and active opposition of Alexander Hamilton, who, 
10 



•74. LIFE OF EDWARD LIVINGSTON. 

during the three days of the election, visited the several 
polls for the purpose of influencing electors in favor of 
the Federalist candidate, James Watson. Mr. Hamilton 
/was accredited, erroneously, I presume, with the author- 
I ship of a handbill which was much circulated at the 
} polls, and which set forth multitudinous reasons for re- 
' turning Mr. Watson in Mr. Livingston's place, — one of 
the best of which reasons was that the latter had so 
little sympathy with the people as to drive a chariot. 
The force of this argument was impaired by the retort 
in the RepubHcan journals of the fact that Mr. Watson 
drove a chariot likewise. Thus it was Hobson's choice 
with the electors, so far as the chariot question was con- 
cerned. The other considerations which were urged for 
and against the candidates being, in general, less im- 
portant, need not be mentioned. Mr. James Watson 
appears to have been an enterprising politician who held 
several offices in both State and nation, and once got 
into the Senate of the United States, where he sat from 
December, 1798, until March, 1800. 

The commanding position in which Mr. Livingston 
,' stood before the public at this period is illustrated by 
the remarks of a distinguished French traveller, who, 
describing what he saw at New York, named, under 
the head of " personages who deserve particular men- 
tion," but three men, — Hamilton, Burr, and Edward 
Livingston, and gave to the last the most extended notice 
{ of the three, styling him " one of the most enlightened 
' and most eloquent members of Congress in the party 
1 of the opposition," * 

The following extract from a letter, written in Feb- 
ruary, 1796, by. Chancellor Livingston to his much 

* Voyage dans les Etats-Un'ts d' 1797- Par La Rochefoucauld-Lian- 
Amerlquc, fait en 1795, 1796, et court. Tome Septieme, page 151. 



SIX YEARS IN CONGRESS. "^^ 

younger brother Edward, shows how affectionate was 
the desire of the former that the latter should not only 
maintain the distinction he had gained, but that he should 
earn and enjoy additions to it : — 

" As I naturally feel myself much interested in your 
political career, I cannot but entreat you to consider 
that you are at this moment making immense sacrifices 
of fortune and professional reputation by remaining in 
Congress. Nothing can compensate for these losses 
but attaining the highest political distinction. But, 
believe me, this will never be attained without the most 
unwearied application, both in and out of the House. 
Read everything that relates to the state of your laws, 
commerce, and finances. Form and perfect your plans, 
so as to bring them forward in the best shape. Forgive, 
my dear brother, both my freedom and my style. I 
write from my heart, not from my head. Be persuaded 
that no extent of talent will avail, without a considerable 
portion of industry, to make a distinguished statesman." 

Tlie Naval Department of the government, as an 
offshoot of the Department of War, was established by 
law in April, 1798. It was a measure of the Federalists 
and the Administration. The Republicans opposed the 
establishment, and Mr. Livingston spoke and voted against 
it. The opposition went upon grounds of economy and 
simplicity, in keeping the management of both army and 
navy under one head, and the inexpediency of enlarging 
the naval defences. The bill passed in the House of 
Representatives by a narrow majority. 

A little later in the same session, the two notorious 
measures of the Government, known as the Alien and 
Sedition laws, were brought forward, and passed by a 
majority in the House. It is most astonishing that Mr. 
Adams and his friends should not have known better than 



76 LIFE OF EDWARD LIVINGSTON. 

to believe it possible to establish two such acts under 
our free Constitution, which they had had so large a share 
in framino\ The Alien bill invested the President with 
power to order dangerous or suspected aliens to depart 
out of the territory of the United States ; or, in case 
of disobedience, to imprison and perpetually exclude from 
the rights of citizenship ; or, after an order to depart, 
to grant a license to remain for such time as the Presi- 
dent should deem proper, and at such place as he should 
designate. The Sedition law made it a high misde- 
meanor, punishable with fine and imprisonment, to com- 
bine with intent to oppose any measures of the Govern- 
ment of the United States, or to traduce or defame 
the Legislature or the President, by declarations tending 
to criminate the motives of either. Both these odious 
measures were passed under the spur of party disci- 
pline. Both excited at once the bitterest opposition of 
the Republican party, and presently incurred the hearty 
abomination of the country. Such experiments in legis- 
lation are not likely to be repeated while our form of 
government lasts. 

Mr. Livingston achieved national fame by the con- 
spicuous eloquence and vigor of his opposition to these 
measures. Having been absent from his seat for some 
time, and returning on the eve of the passage of the 
Alien bill, he delivered, on the 21st of June, 1798, a ve- 
hement argument against it. The following were his 
opening words : — 

" Mr. Speaker : I esteem it one of the most fortunate 
occurrences of my life, that, after an inevitable absence 
from my seat in this House, I have arrived in time to 
express my dissent to the passage of this bill. It would 
have been a source of eternal regret and the keenest 
remorse, if any private affairs, any domestic concerns. 



SIX YEARS IN CONGRESS. 



77 



however interesting, had deprived me of the opportunity 
I am now about to use, of stating my objections and 
recording my vote against an act which I believe to 
be in direct violation of the Constitution, and marked 
with every characteristic of the most odious despotism." 

After proceeding to prove that the bill was not only 
at war with the spirit of the Constitution, but also in 
plain conflict with its letter in several particulars, and 
after showing how long a step towards despotism would 
be made by the enactment of such a law, he predicted 
a direct resistance by the people of the United States, 
and declared that such resistance would be riffht, — an 
imprudent utterance which drove him, under a pressure 
from the advocates of the measure, to the indefensible 
doctrine that the people are themselves the rightful 
judges, in the first instance, of the constitutionality of 
acts of Congress. The ardor of his convictions upon 
the vitally important subject under consideration here 
carried him beyond the wisdom and moderation habitual 
to him, even at this early age. 

This entire speech well merits the attention of every 
intelligent American. Its length precludes its insertion 
here, and it is difficult to present extracts, as samples 
of the whole performance. It was characteristic of all 
Mr. Livingston's productions, to display a copious and 
uniform power rather than any salient and occasional 
beauties ; not irregular and brilliant flashes, but a fine 
and steady liglit. Yet I cannot refrain from quoting 
one eloquent passage, including the indiscreet sentiment 
to which allusion has been made : — 

" But if, regardless of our duties as citizens, and our 
solenm obligations as representatives ; regardless of the 
rights of our constituents ; regardless of every sanction, 
human and divine, we are ready to violate the Consti- 



78 



LIFE OF EDWARD LIVINGSTON. 



tation we have sworn to defend, — will the people submit 
to our unauthorized acts ] will the States sanction our 
usurped power ] Sir, they ought not to submit ; they 
would deserve the chains which these measures are forg- 
ing for them, if they did not resist. For let no man 
vainly imagine that the evil is to stop here ; that a few 
unprotected aliens only are to be affected by this inquis- 
itorial power. The same arguments which enforce those 
provisions against aliens, apply with equal strength to 
enacting them in the case of citizens. The citizen has 
no other protection for his personal security, that I know, 
against laws like this, than the humane provisions I have 

cited from the Constitution You have already 

been told of plots and conspiracies ; and all the frightful 
images that are necessary to keep up the present system 
of terror and alarm have been presented to you ; but 
who are implicated in these dark hints, these mys- 
terious allusions 1 They are our own citizens. Sir, not 
aliens. If there is any necessity for the system now 
proposed, it is more necessary to be enforced against 
our own citizens than against strangers ; and I have no 
doubt that, either in this or some other shape, this will 
be attempted. I now ask. Sir, whether the people of 
America are prepared for this ? Whether they are willing 
to part with all the means which the wisdom of their 
ancestors discovered and their own caution so lately 
adopted, to secure their own persons ] Whether they are 
willing to submit to imprisonment, or exile, whenever 
suspicion, calumny, or vengeance shall mark them for 
ruin 1 Are they base enough to be prepared for this ? 
No, Sir, they will, I repeat it, they will resist this 
tyrannical system ; the people will oppose, the States will 
not submit to its operations ; they ought not to acquiesce, 
and I pray to God they never may. 



SIX YEARS IN CONGRESS. 



79 



" My opinions, Sir, on this subject are explicit, and 
I wish they may be known. They are, that, whenever 
our laws manifestly infringe the Constitution under which 
they are made, the people ought not to hesitate which 
they should obey ; if we exceed our powers, we become 
tyrants, and our acts have no effect. Thus, Sir, one of 
the first effects of measures such as this, if they be ac- 
quiesced in, will be disaffection among the States, and 
opposition among the people to your government ; tu- 
mults, violations, and a recurrence to first revolutionary 
principles ; if they are submitted to, the consequences 
will be worse. After such manifest violation of the 
principles of our Constitution, the form will not long be 
sacred ; presently every vestige of it will be lost and 
swallowed up in the gulf of despotism. But should the 
evil proceed no further than the execution of the present 
law, what a fearful picture will our country present ! 
The system of espionage thus established, the country will 
swarm with informers, spies, delators, and all that odious 
tribe that breed in the sunshine of despotic power and 
suck the blood of the unfortunate, and creep into the 
bosom of sleeping innocence, only to awaken it with a 
burning wound. The hours of the most unsuspecting con- 
fidence, the intimacies of friendship, or the recesses of 
domestic retirement, afford no security ; the companion 
whom you must trust, the friend in whom you must 
confide, the domestic who waits in your chamber, are 
all tempted to betray your imprudence and guardless 
follies, to misrepresent your words, to convey them, dis- 
torted by calumny, to the secret tribunal where Jealousy 
presides, where Fear oflficiates as accuser, and where sus- 
picion is the only evidence that is heard." 

This speech produced a thrilling effect upon the pop- 
ular mind of the nation. It was printed upon satin. 



80 LIFE OF EDWARD LIVINGSTON. 

and reached all classes. The author was deluged with 
petitions from the several States for a repeal of the law, 
to be presented at the next session. The repeal was 
refused by Congress, but both the Alien and Sedition 
laws expired by their own limitation : the former two 
years from its passage, the latter on the last day of Mr. 
Adams's term of office. 

On the 5th of July, while the Sedition Act was under 
consideration in the House, Mr. Livingston moved to 
reject the bill without a second reading. On this occa- 
sion he delivered a speech in favor of freedom for speech 
and for the press, which was characterized by an orator 
on the other side as bold and violent, and as calculated 
to awaken, in well-regulated minds, emotions of fear and 
horror. A Federalist member from Connecticut shud- 
dered, and felt the blood freeze in his veins, when he 
contemplated the probable effects of " the liberty of 
vomiting on the public floods of falsehood to everything 
sacred, human and divine." " If any man," he exclaimed, 
" doubts the effects of such a liberty, let me direct his 
attention across the water ; it has there made slaves of 
thirty millions of men." But the boldness and violence 
of language thus denounced, led and settled the per- 
manent public opinion of the country with reference to 
freedom of speech and of the press. 

In January, 1798, Mr. Livingston carried through 
Congress a measure for the payment of an annuity to 
each of the four orphaned daughters of the Count de 
Grasse, though the gratitude thus expressed by the rep- 
resentatives of the nation was not quite as liberal as 
he desired and urged. The sum devoted to this object 
was four hundred dollars to each of the ladies annually, 
for five years, — a thrifty acquittance of such a debt as 
was thus acknowledged. 



SIX YEARS IN CONGRESS. 81 

III. Mr. Livingston's third election to Congress oo 
curred in April, 17U8, two months before he had made 
hiS powerful and. most popular demonstrations against 
the Alien and Sedition bills. Had it been otherwise, no 
opponent could hav^e taken the field against him with 
any chance of success. As it was, the canvass was 
tame in comparison with the two preceding ones. His 
majority was only V^5 votes. 

It was in the sixth Congress, and in December, 1799, 
that John Marshall first appeared as a member of the 
House, and took at once the leadership of the Govern- 
ment's side. In March following, he delivered the 
most renowned of all his public speeches, in a debate 
set on foot by Mr. Livingston. The question was on 
the conduct of the President, Mr. Adams, in the case 
of Thomas Nash, alias Jonathan Robbins. That person, 
having committed a murder on board a British frigate 
on the high seas, and having escaped to this country, 
had been arrested and committed for trial under the 
laws of the United States, in the Federal court for the 
District of South Carolina. The British government 
demanded his extradition, under the provisions of the 
27th section of Jay's treaty. He was surrendered, tried 
by an English court, convicted, and executed. Mr. 
Adams had officially taken an active part in the business 
of the extradition, by writing to the judge of the court 
in South Carolina to the effect, that, in the President's 
opinion, " an offence committed on board a public ship of 
war, on the high seas, is committed within the juris- 
diction of the nation to whom the ship belongs," for 
which reason the judge was advised and requested to 
deliver up the prisoner to the agent of Great Britain, 
provided only the proper evidence of his criminality 

should be produced. Robbins had claimed to be an 
11 



82 LIFE OF EDWARD LIVINGSTON. 

American citizen, and to have been impressed on board 
the British vessel. 

Here was matter enough for a great deal of honest 
and bitter controversy. The odium which had origi- 
nally attached to the treaty in the minds of a portion 
of the people was revived and aggravated by the circum- 
stance just referred to. The fury of the Republican op- 
position found mild expression in a series of resolutions, 
offered by Mr. Livingston, declaring, in substance, that 
the several questions involved in the case were matters 
exclusively of judicial inquiry ; that the decision of those 
questions by the President was a dangerous interference 
of the Executive with judicial decisions ; and that the 
compliance of the judge in this case was a sacrifice of 
the constitutional independence of the judicial power, and 
exposed the administration of the latter to suspicion and 
reproach. 

To a young Republican orator the temptation was 
strong to make the most of the circumstance of Robbins's 
claim of citizenship, in order to deal a severe blow upon 
the popularity of the administration. But to that temp- 
tation Mr. Livingston did not yield. He declared his 
belief that Robbins was an Irishman, and that he was 
guilty of the crime with which he was charged. In his 
view, by that admission he did not at all surrender 
the point of his resolutions, the design of which was to 
try the naked question of the right of the Executive to 
interfere in the least with the Judiciary in the exercise 
of its functions in a case of extradition under a treaty, 
when the subject of it is in custody. The argument 
of Mr. Marshall was largely addressed to the task of 
answering specifically the several positions advanced by 
Mr. Livingston. It was a gigantic vindication of the 
President, and of the exclusive right of the Executive 



1 



SIX YEARS IN CONGRESS. gg 

to decide such a question ; and, as an argument, fully 
merited all the fame it brought to its author. It will 
be found one of the most wonderful of all recorded dis- 
plays of the power of exhaustive analysis, terse statement, 
and compact reasoning. But it is a task beyond the 
power of any talents to satisfy a mind unbiased, en- 
lightened, and accustomed to the true definitions and 
boundaries of judicial and executive functions in a free 
government, that the President can properly exert an 
official influence upon any judicial order whatever. Nev- 
ertheless, the resolutions were defeated by a vote of 
85 to 61. 

Only a few days after Mr. Livingston had first taken 
his seat in Congress, he offered a resolution that a com- 
mittee be appointed " to inquire and report whether any 
and what alterations should be made in the penal laws 
of the United States, by substituting milder punishments 
for certain crimes, for which infamous and capital pun- 
ishments are now inflicted." The committee was ap- 
pointed, and he was made its chairman. Later in the 
same month, he offered a second resolution, which was 
carried, requesting the President to obtain, for the 
information of Congress, detailed statements respect- 
ing the trials and convictions which had taken place 
under the existing laws. This information was not 
furnished. A year afterwards, Mr. Livingston moved 
for the appointment of a committee " to inquire and 
report whether any and what alterations are necessary 
in the penal laws of the United States, and that they 
report by bill or otherwise." The motion prevailed, 
and he was a})pointed chairman of the new commit- 
tee. I do not find that the latter ever made any 
report, and the matter is only mentioned here for the 
purpose of showing how early the general subject of 



84. LIFE OF EDWARD LIVINGSTON. 

the Livingston Code had engaged the attention of its 
author. 

Mr. Livingston was not a candidate for reelection to 
the seventh Congress, and was succeeded in his seat by 
the celebrated Dr. Samuel L, Mitchill. The close of 
this his first congressional career was signalized by 
the election of Mr. Jefferson to the Presidency of the 
United States in the House of Representatives. The 
electoral votes, when counted, were found to be, 'J3 for 
Mr. Jefferson, 73 for Mr. Burr, 65 for Mr. Adams, 
64 for Mr. Pinckney, and 1 for Mr, Jay. Thus the 
election devolved, by the Constitution, on the House, and 
the choice for both President and Vice-President was 
reduced to Jefferson and Burr ; for, on the election of 
either, in the circumstances stated, to the first office, the 
second would, by the Constitution, immediately attach 
to the other. Between the two the destiny of the coun- 
try hung through seven days and thirty-six ballotings. 
There were then sixteen States. A majority of the Rep- 
resentatives from each State determined its vote. A ma- 
jority of the States was necessary to an election. The 
votes of nine States were therefore required to effect 
that result. 

Thirty-five ballotings ended alike, showing eight States 
in favor of Jefferson, six for Burr, and two equally 
divided. On the thirty-sixth balloting, Jefferson was 
found to have received the votes of ten States, while four 
adhered to Burr and two cast blank ballots. Mr. Jef- 
ferson's election was thereupon declared, and Mr. Burr, 
by law, became Vice-President. 

This crisis, in which a few bold politicians came very 
near overruling the well-known intention of a majority 
of the people of the United States, and for the time 
setting the fundamental principles of our government at 



SIX YEARS IN CONGRESS. 85 

nought, grew out of a clumsy provision in the Consti- 
tution. Then, as now, the vote of the people in each 
State was for a set of electors of the same number as 
the Representatives to which the State was entitled ; and 
the electors thus chosen in all the States afterwards met, 
in electoral college, to ballot for President and Vice- 
President. But the provision referred to required each 
member of the electoral college to ballot simply for two 
persons, without indicating the office for which either 
was designed. Of course, this mode of balloting would 
always result in a tie between the two candidates of 
the successful party for the higher and the lower office, 
unless there should be an arrangement by the party in 
the electoral college, by which some one at least of the 
electors should cast a blank ballot, or one in favor of a 
name not really in the canvass, as was done by the Fed- 
eralists, in this instance, by transferring a single ballot 
to Mr. Jay. How such an arrangement came to be 
omitted by the Republicans is matter of some mystery. 
Burr and his friends had certainly anticipated such a 
result ; and they had probably brought it about by some 
subtle but active means which cannot now be explained. 
At all events, they were on the lookout the moment 
the mischance became known, and were not long in 
perfecting a league with the Federalist leaders in the 
House of Representatives, who, when the time of the elec- 
tion came, made a sturdy attempt, under the leadership 
of Mr. Bayard, the sole representative of Delaware, 
to elevate Burr over Jefferson, as a choice between po- 
litical evils. The attempt was persevered in until its 
success was demonstrated to be hopeless, and a choice 
became inmiinent between a government with Jefferson 
at the head and no government at all. Then, the elec- 
tion was yielded, not graciously, to Jefferson. 



86 LIFE OF EDWARD LIVINGSTON. 

During tins contest, of which not all the details are 
pertinent to my task, Mr. Jefferson steadily received 
the vote of New York. This was done by a majority 
of two in the delegation, six members voting for Jef- 
ferson and four for Burr. Of course, a tie, and a loss 
of the State's vote would have been produced by the 
going over from the former to the latter of a single mem- 
ber. A loss of the vote of New York, though it would 
not on the final balloting have been fatal to Jefferson's 
election, would have been likely, if occurring at an ear- 
lier stage of the controversy, to have that effect.* Liv- 
ingston was one of the six constant adherents of Jeffer- 
son, and thus held, in the contest, a balance of influence 
which he might have wielded in the interest of Burr, 
of his own State and city, with whom his relations, pro- 
fessional, political, and personal, of many years' standing, 
had till then been intimate. 

Under these circumstances, he appears to have been 
marked by Burr as a subject for cautious temptation. 
Judge Van Ness wrote to him from Albany that " it was 
the sense of the Republican party in the State of New 
York, that, after some trials in the House, Mr. Jefferson 
should be given up for Mr. Burr." Bayard, while the 
indeterminate balloting in the House was going on, ap- 
proached Livingston, — or, to employ his own language, 
took occasion to sound him, — and stated that he had un- 
derstood the latter was the confidential friend and agent 
of Mr. Burr, and was ready to cooperate at an appro- 
priate opportunity in his election. Livingston's answer, 
according to the testimony of Bayard, subsequently given 

* I find no ground for believing atives to persevere in what they did 

that the requisite nine States could gravely contemplate, the holding out 

have been secured for Burr in any until the 4th of March, and thus 

event; but a defection of New York preventing any constitutional elec- 

from Jefferson might very well have tion whatever, 
influenced the Federalist Represent- 



SIX YEARS IN CONGRESS. g-r 

on oath in a court of justice, was a very distinct but 
rather dry denial of any such agency or design, leaving 
on Bayard's mind an impression that he felt no zeal in 
Jefferson's behalf, but that he would not give his ballot 
to Burr in any event. What notice, if any, he took of 
Van Ness's letter, does not appear. The secret diary of 
Jefferson shows that his relations with the latter during 
the struggle were of the most confidential character, and 
that the attempt upon him by Burr and his satellites 
did not receive sufficient encouragement to take distinct 
shape. 

Besides the State of New York, whose suffrage 
would have been recorded for Burr if two of its Re- 
publican Representatives had given him their ballots, 
there were four States — Vermont, Maryland, Tennessee, 
and Georgia — either of which would have been secured 
for him by a like change of a single ballot. Any three 
of these five, if thus won over, would have made up the 
nine States required to effect his election. What three 
States so needed were those which the Machiavelian 
chief and his confederates most definitely counted upon 
being able to swerve about " after some trials " is not 
quite clear. There is no good evidence that the hope 
of gaining over any of the five was reasonably conceived. 
None of them wavered visibly during the thirty-five in- 
decisive ballotings ; and on the thirty-sixth, the Federalists, 
in despair, decided, — not to lend a single voice to Jef- 
ferson, besides that of Mr. Huger of South Carolina, 
\\'ho had from the first kept aloof from the action of his 
party in the House, but to cast blank ballots instead of 
those which till then had been thrown for Burr in the 
equally divided and therefore neutralized votes of Ver- 
mont and Maryland. These two States were in this way 



88 



LIFE OF EDWARD LIVINGSTON. 



added to those which had all the while adhered to Jef- 
ferson, and the struggle was over. Burr from this 
moment started upon that tedious career of infamy, 
whose downward course the killing of Hamilton so im- 
pressively precipitated. 



CHAPTER VI. 
OFFICES AND MISFORTUNES. 

Approaching Change in Mr. Livingston's Career — Death of his Wife — 
Appointment as Attorney of the United States, and as Mayor of New York 
— Variety of Functions — Germ of the Livingston Code — Manners and 
Tastes — Conduct during the Prevalence of Yellow-Fever in the City — 
The incurring of a Debt to the Government — Circumstances of the Af- 
fair — Conduct in that Difficulty — Resignation of Offices — Honors there- 
upon received — The Purchase of Louisiana — Letter from Lafayette — 
Departure fbr New Orleans. 

"\ T T'E come, now, to the middle period of Living-ston's 
^ ^ life, — a period of protracted trials, vicissitudes, 
and storms. The manner in which he bore himself 
under long accumulating misfortunes, and triumphantly 
rid himself of the burden at last, is what will lend to 
the narration its highest interest. 

The same month in which he retired from Congress, 
and from the scenes which attended the election of Jef- 
ferson, he sustained the first * of a series of domestic 
afflictions, destined in all their circumstances to try to its 
utmost the strength of his philosophy. Of this bereave- 
ment, caused by scarlet-fever, he afterwards made in 
his Bible the following record : " On the 13th of March, 
1801, it pleased Heaven to dissolve an union which for 
thirteen years it had blessed with its own harmony, with 
an uninterrupted felicity rarely to be met with ; formed 
by mutual inclination in the spring of life, it was ce- 
mented by mutual esteem in its progress, and was ter- 

* 1 he first except the death of ly, at an advanced age, in July of 
his mother, which occurred sudden- the preceding year. 
12 



90 LIFE OF EDWARD LIVINGSTON. 

minated by a stroke as sudden as it was afflictive." 
They had had three children, Charles Edward, Julia 
Eliza Montgomery, and Lewis, born respectively in 1790, 
lyO"^, and 1798, and these all survived to him. 

A few days after sustaining- this blow, and while his 
grief was yet in its sharpest stage, he received from 
Mr. Jefferson a commission appointing him to the office 
of Attorney of the United States for the District of 
New York, then comprising the whole State, in place of 
Richard Harrison, removed. This was an acceptable 
office, because it was honorable and profitable, while its 
functions were in the line of his profession, the labors 
of which he had determined actively to resume. 

At the same time a movement had been on foot for 
several months in the Republican party in the city and 
at Albany for the removal of Richard Varick from the 
f office of Mayor of the city of New York, and the ap- 
pointment of a Republican in his stead. The only dif- 
ficulty was to unite, upon an individual, the elements 
which composed the Council of Appointment sitting at 
Albany, as influenced by the Republican members of the 
legislature. This was done in August folio vi'ing; and 
Edward Livingston was then named for the place without 
a dissenting voice in the council. On the 24^th of the 
month he was formally installed in the office. 

The mayoralty of New York was then esteemed to 
be, and was in fact, a post of great dignity and impor- 
tance. The celebrated De Witt Clinton, in order to 
accept it, resigned his seat in the Senate of the United 
States. Since the close of the war, the population had 
grown from twenty thousand to upwards of fifty thou- 
sand, and the rate and prospect of increase continued. 
All the municipal offices of the city were respectable. 
The Mayor presided over the deliberations of the common 



OFFICES AND MISFORTUNES. ^ 9I 

council, and, superadded to all his executive functions, 
he was, as we have already seen, the presiding judge 
of a high court of record, possessing both civil and 
criminal jurisdiction. The emoluments of the place were 
in the form of liberal fees and perquisites ; and a few 
years' incumbency, carefully managed, was equivalent to 
a handsome competence. 

The holding of two such offices at the same time, — 
the one under the Federal, the other from the State gov- 
ernment, — which would not now be thought compatible, 
excited no cavil then ; and both these appointments, being 
for short terms at first, were renewed the next winter. 

Party spirit had at that time acquired a good deal 
of earnestness in both city and State. A public dinner 
was given to Mr. Varick by the Federalist lawyers, 
at which a rather warm dissatisfaction on the subject of 
his removal was expressed. Toasts were drunk, twenty- 
five in number, which, if read now, have a labored, ob- 
scure, and pedantic sound ; and their political bitterness, 
though not very outspoken, is more apparent than their 
pointedness. 

Thus Livingston, at the age of thirty-seven, after a 
distinguished as well as a smooth and happy career, 
found himself still borne forward upon a tide of pros- 
perity, reputation, and influence. From this point the 
reader will obtain more frequent as well as more distinct 
impressions of the personal habits and qualities of an 
extraordinary man : a marvellous industry which would 
have soon destroyed any but the soundest constitution, 
and which enabled him, in the midst of every-day avo- 
cations and cares, to accomplish a work pronounced by a 
French publicist to be " without example from the hand 
of any one man ; " a steady philanthropy which was 
his chief incentive ; an equal aptitude for affairs, society, 



92 LIFE OF EDWARD LIVINGSTON. 

or study ; a peculiar simplicity of heart joined to unsur- 
passed intellectual acumen ; an extreme gentleness grafted 
upon unconquerable energy ; and a temper after child- 
hood never once overset. 

He did not rest for a moment in the possession of 
his new dignities, but devoted his whole energy to the 
duties which they imposed. We presently find him pre- 
siding on important capital trials, where his charges 
to juries are described by the journals of the time as 
extraordinarily impressive. But he made no discrimi- 
nation between these conspicuous functions and those 
useful labors which are performed out of the public view. 
He at once undertook a reformation of the rules and 
practice of the court in civil actions, and soon com- 
menced the preparation of a volume* of reports of such 
of his own and the recorder's decisions as he thought 
should be generally known to the bar. This was before 
any regular reporting of the judgments of either the 
city or State courts had been undertaken, and when but 
a single volume of reports — that of Colman's Cases 
— had appeared. 

A greater variety of functions could hardly be heaped 
upon the hands of one man. The president of a court 
of justice and of a deliberative body, he must appear 
as an advocate in all causes of importance in his district 
in which the Federal Government was interested, and, 
in turn, superintend the administration of multifarious 
municipal affairs, from the regulation of finance to the 
assize of bread. The strides which the town was then 
making towards its present metropolitan proportions are 
well indicated by the fact that the city-hall, at that time 

* Judicial Opinions, deli'vered in New York : Printed and published 

the Mayor'' s Court of the City of by D. Long worth, at the Shakspeare 

Neiu York in the year 1802. Forsi- Gallery near the Theatre, 1803. 
tan et haic olim meminisse juvabit. 



OFFICES AND MISFORTUNES. 93 

projected and commenced, — though it long since ceased 
to be adequate to the purposes of its construction, — was 
at first magnificent in view of its required uses, as well 
as by the fact that the dark-colored stone employed in 
the construction of its rear or northern wall was used 
instead of the marble of the three other sides, for the 
reason that that wall would be out of sight of all the 
world. The corner-stone was laid by the Mayor with 
appropriate ceremonies, in 1803. 

The Mayor was required, by the custom of the period, 
to devote to the public and private entertainment of dis- 
tinguished strangers a degree of attention which the 
growth of the city and of the world's travel afterwards 
rendered impossible. For this duty Mr. Livingston was 
eminently fitted, and he discharged it with conscientious- 
ness and pleasure. His residence was at No. 1 Broad- 
way, the windows overlooking the Battery. The large 
trees upon this common were planted during his admin- 
istration and under his direction. 

An ordinary man would have found enough to occupy 
all his faculties and desires in the labors, the eclat, and 
the profits of these oflBces. But Livingston, whose mind, 
as we have seen, at school and college had strayed in 
fields of poetry and philosophy ; who during the early 
and successful practice of his profession had found leisure 
for the prosecution of varied liberal studies; and who 
as a legislator had planned and laboriously matured com- 
prehensive measures of mere humanity, now, in the 
midst and whirl of these occupations, conceived and first 
publicly broached an original project which appears to 
have been the germ of that great scheme of philan- 
thropy to the perfecting of which he was yet to devote 
his best energies for many years. In a communication 
to the Mechanic Society he proposed that an organized 



94^ LIFE OF EDWARD LIVINGSTON. 

attempt should be made by the society, jointly with the 
city government, to found an establishment in which to 
assure the employment of, first, strangers during the 
first month after their arrival ; secondly, citizens, who, 
from the effects of sickness or casualty, have lost their 
usual employment ; thirdly, widows and orphans, inca- 
pable of labor ; and, fourthly, discharged or pardoned 
convicts from the state-prison. This experiment would 
have required a capital and an organization which he 
thought the city government not prepared to undertake 
alone, but which he believed practicable as a joint un- 
dertaking of the government and the society which he 
addressed. In this communication there are some touches 
of the earnestness and eloquence with which he was af- 
terwards wont to write upon these and kindred topics. He 
dwelt upon some of the results which he hoped would 
flow from the adoption of the measure ; as the suppres- 
sion of mendicity, the prevention of those crimes which 
arise from idleness and want, the restoration of unfortu- 
nate citizens sunk by misfortune below their former sta- 
tion in society, and the accomplishment of reformation 
along with the punishment of criminals. " It is," said 
he, in this paper, referring to the penitentiary system, 
" a great, I had almost said a godlike experiment, worthy 
of the free country in which it is made, honorable to 
the men who planned, and highly creditable to those who 
conduct it. Its progress is regarded with an interest 
running into anxiety, by the friends of humanity in every 
quarter of the world ; and its failure, from whatever cause, 
will check the spirit of improvement that suggested it, 
and restore the ancient bloody code with all its horrors. 
But it must be evident that nothing will tend so much 
to defeat the principal object of reformation, and at the 
same time endanger the security of the city in which 



OFFICES AND MISFORTUNES. 



95 



it is placed, as the situation in which those who have un- 
dergone the sentence of tlie law now stand at the time 
of their discharge. The odium justly attached to the 
crime is continued to the culprit after he has suffered its 
penalty ; he is restored to society, but prejudice repels 
him from its bosom ; he has acquired the skill and 
has the inclination to provide honestly for his support. 
Years of penitence and labor have wiped away his crime, 
and given him habits of industry, and skill to direct them. 
But no means are provided for their exertion. He has 
no capital of his own, and that of others will not 
be intrusted to him ; he is not permitted to labor ; he 
dares not beg ; and he is forced for subsistence to plunge 
anew into the same crimes, to suffer the same punish- 
ment he has just undergone, or, perhaps, with more cau- 
tion and address, to escape it. Thus the institution, in- 
stead of diminishing, may increase the number of offences. 
This partial defect, so easily remedied, may ruin the 
system, and put a stop to the fairest experiment ever 
made in favor of humanity." 

The Mayor here unfolded his scheme, of which the 
leading features were the opening of public workshops 
for the several branches of mechanical art, in which any 
tradesman wanting employment would be sure to get it, 
in his proper trade, — each shop to be managed under 
the direction of a committee appointed by the Mechanic 
Society ; a general office for the reception of applica- 
tions by those destitute of employment, as well as by 
those requiring workmen ; a large workroom, annexed to 
the almshouse, in which women and children might be 
employed in labors suited to their strength, where food 
might be prepared for them at a cheap rate, and where 
the children might receive the advantage of some edu- 
cation in the school belonging to that establishment ; a 



96 LIFE OF EDWARD LIVINGSTON. 

sj^stem of regulations for the purchase of raw material, 
sale of manufactured goods, and prices of labor ; and the 
furnishing of the necessary capital by the corporation of 
the city, for the due application of which, but not for 
inevitable loss, the committees should be responsible. 

" This," continued the Mayor, " is a sketch of the 
plan which presented itself to my mind as one that would 
probably effect the objects I have detailed. Many parts 
of it may perhaps be changed for the better, and other 
valuable ideas suggested, in case you should think proper 
to appoint a connnittee to confer with me on the subject. 
A general establishment under the direction of the cor- 
poration would seem to present many advantages over 
the one now proposed. But, besides the difficulty of 
raising a fund sufficient for its support, it would have 
the disadvantage of creating an interest which might 
sometimes be supposed injurious to the mechanic who 
works only on his own small capital ; whereas the be- 
ing under the superintendence of the Mechanic Society 
could never give rise to any such prejudice. Having 
mentioned the cooperation of the common council of the 
city, I must not be understood as speaking their senti- 
ments, or in any wise pledging them to countenance the 
plan. It has not yet been mentioned at the board, and 
will receive no further encouragement from them than 
on discussion its merits shall be found to warrant."* 

* We have seen that Mr. Liv- in the French of Dumont, in 1802. 
ingston had in Congress, some years This fact he acknowledged in a let- 
before this period, made earnest but ter to Bentham of August 10, 1829. 
ineffectual eiforts to meliorate a por- Vide Betitham''s JVorks, edited by 
tion of the criminal laws of the Bowring, vol. xi. page 23. In a 
United States. But the reflection subsequent letter, which appears in 
which was to lead eventually to the the same collection, Livingston wrote 
preparation of an original, compre- to Bentham, — "Although strongly 
hensive, and complete system of pe- impressed with the defects of our 
nal legislation, first received impulse actual system of penal law, yet the 
and shape from the perusal of those perusal of your works first gave meth- 
of Bentham's works which appeared, od to my ideas, and taught me to 



OFFICES AND MISFORTUNES. 



97 



The response of the society was a respectful anol elab- 
orate refusal to entertain the plan. Circumstances soon 
occurred which prevented the author from seeking an- 
other method of bringing- it before the people of his native 
State ; and its gradual growth in his mind and under 
his hand to a complete proposed system, comprehending 
a reconstruction of the entire framework and details of 
criminal legislation, was reserved for a later period and 
another place. 

Would the reader suppose that the man who performed 
from day to day these varied practical labors, and who 
pursued at the same time such researches and contem- 
plations as are here indicated, could also find much of 
either leisure or inclination for domestic intercourse, so- 
ciety, or amusement ? The capacity and taste of Liv- 
ingston were sufficient for all these. He could tempo- 
rarily lay aside the gravest cares and the deepest studies 
with a grace and a relish, in the very spirit of the Ho- 
ratian recommendation, — 

" Misce stultitiam consiliis brevem." 

Among his intimate acquaintances he never let pass an 
9pportunity for producing a pun ; and if a good one did 
tiot come into his mind, an indifferent one would serve 
the purpose of his gleefulness and gayety. The late 
Honorable Charles J. Ingersoll, during the last month of 
his life, gave me from his own memory, after a lapse of 
sixty years, this anecdote. On a visit at New York 
[luring the period referred to, he escorted the celebrated 
riieodosia Burr to see a frigate then lying in the harbor, 
upon the invitation and in the company of the Mayor. 
On tile way, tlie latter, in the liveliest manner, exclaimed 

;onbidcT legiblatiun as a science gov- powers, called forth only on particu- 

:rned by certain principles applica- lar occasions, without relation to or 

)le to all its ditferent branches, in- connection with each other." Fide 

itead of an occasional exercise of its page 51 of the same volume. 
13 



98 LIFE OF EDWARD LIVINGSTON. 

to the young lady, " Now, Theodosia, you must bring- 
none of your sparks on board. They have a magazine 
there, and we should all be blown up." He seemed al- 
ways ready for a hearty laugh, and was not fastidious about 
the quality of the wit which should provoke it. At his 
own table, or among his familiar friends, his gayety was 
perennial ; and a stranger seeing him in these circum- 
stances would have supposed that the usual topics of 
conversation common to the young and the old of both 
sexes were those in which he felt the most lively interest. 
He was himself fond of some kinds of amusement, and 
enjoyed sympathetically the amusements of all. One of 

his nieces, Mrs. L , of Rhinebeck, has lately told me, 

what she remembers well, that during the same period, 
when she was about sixteen years of age and spending 
a winter with her uncle, she once said in his presence, 
while talking of the play which she had seen the evening 
before, " Oh, I wish I could go to the theatre every 
night." " Well, my dear," said the Mayor, " you shall, 
you shall." And he actually went with her to see every 
representation, then on each alternate night, for two or 
three weeks, until she voluntarily begged that the pleasure 
might be intermitted. 

His daily official labors were despatched with aston- 
ishing facility, and he still found some leisure for reading 
general literature, including poems, and even romances, 
in which he delighted. In short, the capacity and the 
sympathy of this able, learned, philosophic, and busy 
man, seemed only confined to the region of human tastes 
and interests. Not Terence nor any other, with more 
truth, could say, — 

" Homo sum ; humani nihil a me alienum puto." 

Such was the active but even tenor of Livingston's 
life, from the time when he undertook these offices until 



OFFICES AND MISFORTUNES. 99 

the summer of 1803. New York has been visited sev- 
eral times by that fearful pestilence, the yellow-fever, — 
the rarity of the dispensation always heightening its 
terror, — and one of the most memorable of these occa- 
sions was in that year. The first appearance of the 
scourge was about the 20th of July, and its presence 
lasted till the end of October. This event elicited a 
display, on the part of the Mayor, in the regular dis- 
charge of his functions, of more lofty qualities than a 
lifetime of ordinary official duty could have called into 
exercise. The public alarm was great and universal. 
As a rule, all who could possibly leave the city for any 
place of safety hastened to do so. As usual, however, 
there were many instances of selfishness and cowardice on 
the one hand, and on the other many examples of heroic 
philanthropy. The reader will not need a minute picture 
of those dismal scenes of which the city was then the 
theatre, so like other often painted scenes of pestilence 
enacted elsewhere, — the hospitals, the streets, the shipping, 
the flights, the burials, — in order to comprehend the po- 
sition of the Mayor, or to appreciate his conduct. He 
regarded himself bound, as by a sacred contract, to re- 
main steadfastly at his post, and calmly face the public 
enemy, without the slightest attention to what might be 
the consequences upon himself. 

He so remained, but did not limit his exertions to a 
frigid performance of his official duty. On the contrary, 
he kept a list of the houses in which there were any 
sick, and visited them all, as well as the hospitals, every 
day, ascertaining and supplying the indispensable needs 
of the poorest and most forsaken of the sufferers. He 
made every sick person in some sense his patient, and 
sought some share in the grief or joy of the families of 
victims or convalescents. He animated the zeal of his 



IQO L^FE OF EDWARD LIVINGSTON. 

colleagues and subordinates in the government, stimulated 
the fidelity of nurses, physicians, and priests, and even 
went about the city at night, to see for himself if the 
watchmen were thorough in their duty. In a word, it 
was the part of a Howard, in the person of a conscien- 
tious chief magistrate, that he enacted in this dreadfully 
real drama. 

For some time, and until there was a marked abate- 
ment in the prevailing fatality of the epidemic, he en- 
joyed complete health. Then he was himself taken down 
by the contagion. But his good constitution, aided by 
a sanguine will and the particular care which his case 
received, secured him a rapid recovery after a rather vio- 
lent but short crisis. He was now the object of extraor- 
dinary popular gratitude and regard. When his physi- 
cians called for Madeira to be administered to him, not 
a bottle of that or any other kind of wine was to be 
found in his cellar. He had himself prescribed every J 
drop for others. As soon as the fact was known, the 
best wines were sent to his house from every direction. 
A crowd thronged the street near his door, to obtain the 
latest news of his condition ; and young people vied with i 
each other for the privilege of watching by his bed. 

An ambitious man could hardly desire a better van- 
tage than that which Livingston now seemed to occupy. 
He was but tliirty-nine years of age ; yet he had proved 
his great talents as an advocate, as a legislator, as an 
administrator of public affairs, and as a judge. His 
civic virtue had just been put to the hardest test, and 
found reliable. The dangers of the trial were past, and 
these high qualities were widely appreciated both by 
])ublic men and by the people. Surely, nothing was 
here wanting to the appropriate description of a rising 
man. 



OFFICES AND MISFORTUNES. 101 

So far, his course had been one of uniform prosperity 
and uninterrupted success. His happiness had been un- 
clouded, except by the afflictions which have been men- 
tioned and one other. His eldest son, Charles Edward, 
had died in November, 180!2, at the age of twelve years. 
He was a youth of a feeble constitution, but of the 
sweetest disposition, and of a precocious native piety 
and strong- sense. The father mourned him sincerely, 
but a long expectation of the bereavement materially 
softened its effects. 

I have now to record the principal misfortune of Liv- 
ingston's life, — a misfortune which, in fact, served to 
divide his life into two distinct careers, bringing that 
over which we have glanced to an abrupt close, and 
leading to another, destined, in its labors, achievements, 
and fame, to eclipse the first. 

At that time, such moneys belonging to the United 
States as were collected by legal proceedings, instead of 
being paid directly to agents of the treasury, as is now 
done, were received by the attorneys, and accounted for 
to the government in the periodical settlement of their 
accounts for services. The principal sums so received 
by the office at New York, while it was held by Liv- 
ingston, were on the collection of custom-house bonds, 
small in amounts but sometimes large in number, and 
usually paid, if at all, without litigation. While he had 
so many irons in the fire, he could pay but little attention 
to this part of the business, and he had no taste for 
personally managing such affairs. From a certain ne- 
cessity, therefore, as well as from inclination, he left 
these matters for the most part in the hands of his subor- 
dinates. But this was somewhat too laxly done, — a kind 
of error to which more than to any other his large and 
easy nature exposed him. The result which the more 



102 LIFE OF EDWARD LIVINGSTON. 

exact attention of an inferior man would have prevented, 
happened. His too easy confidence was abused ; and 
when, early in August, while the yellow-fever was at its 
height in the city, his attention was called by the gov- 
ernment to the state of his accounts, it was apparent 
that, without funds in his possession, he was indebted 
to the United States in a considerable amount. 

The principal act, the act of another, which placed him 
in this unlooked-for position, was a most cruel injury. 
His proper income was large, and although his habit in 
both spending and giving was free, and perhaps careless, 
his personal tastes were all simple, and none of them 
expensive. Though he was obliged to entertain much, 
as we have seen, it was done without display or profu- 
sion. 

Still, it is plain, I think, that, if he had possessed 
common skill in the management of pecuniary affairs, 
and had exercised ordinary care in watching the funds 
for which he was responsible, this calamity might have 
been avoided. Here was the single defect in his capacity, 
— ■ the one conspicuous weakness of his character. His 
versatility, which was sufficient for almost any other busi- 
ness, public or private, was inadequate to book-keeping 
and finance. He did not love money, and could not 
comprehend its real value as most men readily do, nor 
interest himself in the process of counting or of slowly 
accumulating it. The whole following course of this 
narrative will, I believe, verify these observations, and 
show that one who, by a happy union of the sterner and 
the milder virtues, came nearer to such perfection of 
character as is possible to our nature than is often per- 
mitted, was yet obliged to suffer a rigorous and endur- 
ing penalty for one failing from which even the sordid 
are very commonly exempt. 



OFFICES AND xMISFORTUNES. 103 

Mr. Livingston seldom in after-life made any allusion 
to the particulars of this unhappy affair. The most ex- 
plicit statement that, as far as I can find, ever came from 
him on the subject, was in a pamphlet which, five years 
later, he addressed to the people of the United States, in 
the course of a public controversy with the President, Mr. 
Jefferson, — of which an account will be given hereafter in 
these pages, — a controversy wherein he was foiled in an 
endeavor to realize speedily the means of paying his debt. 
The statement to which I refer occurs in a passage explan- 
atory of his reasons for addressing the public, and is as 
follows : — 

" It is time that I should speak. Silence now would be 
cruelty to my children, injustice to my creditors, treachery 
to my fame. The consciousness of a serious imprudence, 
which created the debt I owe the public, I confess it with 
humility and regret, has rendered me perhaps too desir- 
ous of avoiding public observation, — an imprudence which, 
if nothing can excuse, may at least be accounted for by 
the confidence I placed in an agent, who received and ap- 
propriated a very large proportion of the sum, and the 
moral certainty I had of being able to answer any call for 
the residue whenever it should be made. Perhaps, too, it 
. may be atoned for in some degree by the mortification of 
exile, by my constant and laborious exertions to satisfy the 
claims of justice, by the keen disappointment attending 
this deadly blow to the hopes I had encouraged of pour- 
ing into the public treasury the fruits of my labor, and 
above all by the humiliation of this public avowal." 

The agent here spoken of was a confidential clerk, a 
Frenchman by birth, whose name I could give if it would 
serve any useful purpose. He is said to have devoted 
a considerable portion of the stolen money to riotous liv- 
ing. I have conversed with those who remembered his 



104< LIFE OF EDWARD LIVINGSTON. 

person distinctly, as well as the notorious circumstance 
of his delinquency. Of his history or fate I could learn 
nothing further. 

In this unexpected trouble the conduct of Livingston 
was prompt, and in all respects characteristic. Being sat- 
isfied of his liability for an amount which he could not 
then discharge, he wasted no time in attempts to parry the 
disaster, or to divide the responsibility with the real but 
irresponsible delinquent. Without waiting even for an 
adjustment of his accounts, he voluntarily confessed judg- 
I ment in favor of the United States for ^100,000, in order 
to cover the amount which the adjustment should show 
to be the real balance against him, — afterwards fixed at 
^43,666.21. At the same time, he conveyed all his 
property to a trustee for sale, and an application of the 
proceeds to the payment of his debt. The property con- 
i veyed consisted of real estate, which, though not very 
■ marketable, he valued at a sum sufficient for the security 
of the government. And he immediately resigned both 
his offices. 

This was done while the pestilence was raging in the 
city. The resignation of the mayoralty was accompanied 
by an offer to continue to discharge the duties of the office 
until the subsidence of the epidemic. The Governor sent 
him the following note, tacitly postponing to act upon his 
resignation, and accepting his offer : — 

" To the Hon. Edward Livingston, Esq.,") 
Mayor of the City of New York. j 

** Albany, 29th August, 1803. 

" Dear Sir : I have the honor of receiving your letter 
of the 19th. I sincerely regret, as well from considera- 
tions of a personal as of a public nature, the cause which 
has induced you to offer a resignation of the highly impor- 



OFFICES AND MISFORTUNES. 105 

tant office you hold, and which you are so eminently 
qualified to fill. My absence from home has prevented 
me from thanking you at an earlier day for your obliging 
favor of the 19th inst. 

" I am, with great esteem and respect, 

" Your most obedient servant, 

" George Clinton." 

A different course, including his retention of the office 
of Mayor, would seem to have been quite practicable. 
Two months intervened between the offer of his resigna- 
tion and its acceptance by the Governor and Council of 
Appointment, when finally De Witt Clinton was selected 
to succeed him. Efforts were made during the interval 
by his friends, including some members of the Council, 
to persuade him to reconsider his determination. And 
when it was known that his mind was fixed in this, he 
received from all sides a shower of expressions, public 
and private, of regret and sympathy which must have 
proved truly soothing. The parting address which he 
received from the common council of the city contains 
such unusual traces of sincerity and real feeling that I 
transcribe it here as follows : — 

" Sir : We should merit the reproaches of our fellow- 
citizens, and fail in duty to ourselves, if we should pass in 
silence the affecting moment which terminates your ad- 
ministration as first magistrate of this city ; we unite with 
the utmost cordiality in that applause which the public 
voice hath so justly bestowed on your conduct in execution 
of the office of mayor, on the learning and discernment 
displayed in your judicial decisions, your vigilance, your 
activity, and zeal as an executive magistrate. 

" Having been connected with you in the discharge of 



106 LIFE OF EDWARD LIVINGSTON. 

the greater part of those duties, we cannot too warmly 
acknowledge the uniform politeness and courtesy of your 
manners. Inflexible in the preservation of order and in 
the execution of the laws, yet unbiassed by personal feel- 
ing or party prejudice, you have invariably exhibited dig- 
nity and firmness tempered by complacency; even when 
differing from you in opinion, we have always had occa- 
sion to admire your rigid impartiality and the indepen- 
dence of your sentiments. 

" This assemblage of qualities so rarely combined 
would suffice to command our highest respect and esteem ; 
but it was reserved for a period of desolating calamity to 
display the extent of your philanthropy, and your disin- 
terested devotion to the public welfare. During the 
scenes of affliction and dismay with which it hath lately 
pleased God to visit our city, we beheld with admiration, 
and with the most grateful emotions, the unremitted zeal 
with which you sought out and relieved distress, and the 
alacrity with which you sacrificed your personal safety and 
comfort to that of the suffering poor ; regardless of danger 
and toil, and disdaining all cold examination of the mere 
limits of official duty, when humanity called, you obeyed 
only the impulse of your generous heart. Thus, Sir, you 
have erected in the breasts of the virtuous a monument of 
gratitude which calumny cannot sully nor time deface. 

" The anxiety and alarm which pervaded all ranks of 
citizens during the dangerous illness which you contracted 
in administering to them relief, pronounced, in language 
which flatterers cannot imitate nor envy distort, the ardor 
and sincerity of their affection ; and we join with them 
in fervent acknowledgments to the supreme and benefi- 
cent Disposer of events, who hath graciously spared your 
life and restored you to health. 

" We must indeed be destitute of the feelings of men, 



OFFICES AND MISFORTUNES. 



107 



if we could witness, without regret, the period which 
dissolves a connection endeared by so many ties. We 
look in vain for consolation to the future. Yet you have 
so marked the path of duty that inferior abilities, if 
guided by intentions as pure, may follow in the steps 
traced by your wisdom, and for a time preserve the im- 
pulse which your energy hath produced. While we 
cherish this hope, the memory of your example will 
direct our conduct and animate our zeal in the discharge 
of our respective functions. 

" Be assured. Sir, that our attachment to your person 
and gratitude for your services will endure with the 
recollection of your virtues ; and that you bear with 
you our lasting regret and esteem, and our prayers for 
your prosperity and happiness. 

" John Oothout, 
" Philip Brasher, • 
" Joshua Barker, 
" Committee of the Common Council." 

But, whatever comfort he might find in the homage 
of friends or in the popular sympathy, that consideration 
could not for a moment relieve him from a conscious- 
ness of the new burden which was destined to continue, 
contrary to his sanguine hopes, alternately to stimulate 
his exertions, to oppress his spirits, and to perfect his 
fortitude for many years ; nor did it for a moment divert 
his mind from a plan for the future, which he deliber- 
ately but swiftly formed. 

In April of the same year, 1803, Louisiana, or the 
province of Orleans, comprising the present States of 
Louisiana, Arkansas, Missouri, Iowa, Minnesota, (except 
the corner lying northeast of the Mississippi,) Nebraska, 
and Kansas, and the Indian Territory, was purchased 



108 LIFE OF EDWARD LIVINGSTON. 

by the United States from France. Chancellor Living- 
ston, the revered elder brother of Edward, had been 
from the beginning of Jefferson's administration the 
Minister Plenipotentiary of our government to France ; 
and the success of this negotiation, at the particular time 
when it was accomplished, was the result of his diplo- 
macy, which had been bold, skilful, and indefatigable. 
Mr. Monroe arrived in France with extraordinary powers 
on this subject, but a few days before the treaty was 
concluded, and, during those days, assisted in that part 
of the negotiation which related to fixing the price of 
the country to be ceded, — Napoleon being represented 
by Marbois, afterwards the candid historian of the treaty ; 
but the whole merit of successfully bringing the matter 
to this point, at the right moment, was that of the 
minister. From the latter Edward had received very 
early knowledge of the subject, strongly exciting liis 
interest in it. In June, Lafayette had written to him, 
" Bernadotte is returned from Rochelle, where he was 
to embark, and his mission I consider as happily ended 
by the blessed arrangement for Louisiana. With all 
my heart I rejoice with you on this grand negotiation, 
which, both as a citizen and a brother, must be not less 
pleasing to you than it is to me." * 

* Bernadotte had been charged votre frere et les papiers publics vous 
by Napoleon with an errand to our auront appris, Monsieur, le mal- 
government, and Lafayette had writ- heureux accident que M. de La- 
ten to bespeak a good reception for fayette a eprouve. Je suis bien 
him from Livingston. Between the sure que votre amitie y aura pris 
last two there was a regular inter- part, et que ce sentiment est par- 
change of news of every event of tage par toute votre excellente fa- 
importance to either. A few months mille. Nous avons eu la douleur 
earlier than the date of the above- de voir ce cher malade livre a de 
mentioned letter, while Lafayette cruelles souftVances ; il doit encore 
was confined with a fractured limb, subir six semaines d'une gene dou- 
Madame Lafayette wrote the follow- leureuse, et presqu' insupportable, — 
ing to Livingston : — mais graces h I'invention d'une nou- 

velle machine cette fracture du col 

"Pam, I oventose, I" Mars, 1803. ju femur qu'on regardait autrefois 

" La correspondance de Monsieur comme incurable, sera completement 



OFFICES AND MISFORTUNES. 109 

When the Mayor received this letter, he Httle dreamed 
that his own interest in the " blessed arrangement " would 
soon be somethingf more than that of " a citizen and a 
brother." The blow destructive of his fortune and threat- 
ening his complete ruin shortly afterwards fell. Then 
the prospect suddenly opening to New Orleans as a com- 
mercial city, and to Louisiana as a mother of great States, 
suggested to him the thought that the new territory — 
where the French language, with which he was fomiliar, 
was the one chiefly spoken, and where the civil law, whose 
principles he had mastered and admired, was the basis 
of jurisprudence — might be his best field for the purpose 
\\dth which he burned, of quickly regaining his indepen- 
dence. He felt sure that he could in time effect his de- 
liverance by professional exertions at New York ; but, 
there the process would be too slow for his patience, 
while there existed a reasonable chance of a more speedy 
rescue elsewhere. 

He now had need of all his philosophy. He was 
considerably past the period of life when usually, if ever, 
a man undertakes for the first time such an adventure, 

guerie. Son courage et I'egalite de Toute sa famille s'y unit bien cor- 

sa Constance au milieu de ces dif- dialement. Agreez en particulier 

ferens supplices ont soutenu, et sou- I'hommage de I'attachement que 

tiennent encore nos forces, et sont mon fils vous a voue ; il m'est doux 

rcgardes par les gens de I'art comme de vous r^peter ici combien nous 

un moyen de guerison. C'est au fumes touches pendant notre cap- 

moins un motif d'esperance que sa tivite des honorables et sensibles 

sante ne restera pas alteree des suites temoignages d'interet que vous lui 

de ses souffrances. C'est dans cette donnates, et combien nous sentons 

situation que M. de Lafayette vient le prix d'un ami tel que vous. Je 

d'apprendre vos bienveillantes inten- ne vous parle pas de I'aimable par- 

tions a son egard et les nouvelles tie de votre famille qui est ici, 

obligations que vous voulez bien parceque vous recevrez de leurs 

ajouter a celles que nous vous avions nouvelles par la meme occasion, et 

dcjh,. II en est penetre de recon- je me borne k vous offrir I'expression 

naissance, et comme la necessite de de I'attachement et de la haute con- 

rester couche sur le dos, sans aucun sideration avec lesquels j'ai I'hon- 

mouvement, I'empeche de pouvoir neur d'etre votre tres humble et 

ecrire, il me charge de vous expri- obeissante servante, 
mcr tous les sentimens de sa grati- » Noailles Lafayette." 

tude et ceux de sa tendre amitie. 



110 LIFE OF EDWARD LIVINGSTON. 

and to this one all his habits and associations, his tastes, 
and his affections, opposed themselves. It was to quit the 
scene of his long- prosperity and happiness, his family, 
his friends, and the fresh graves of his wife and eldest 
son ; while the comfort and safety of his two remaining 
children, now nine and five years old, the objects of his 
tenderest feelings, would require them to be left behind 
for years. Nevertheless, he resolved upon the enter- 
prise, and, having- made the resolution, did not lag" in 
its execution. He at once arranged his affairs, procured 
all practicable means of extensive introduction to Loui- 
sianians, and leaving his children, from whom he had 
never yet been separated, in the care of his brother, 
John R. Livingston, whose wife was Eliza McEvers, 
the sister of their mother, he embarked, during the last 
week of December, 1803, within two months after re- 
tiring from the mayoralty, as a passenger on board a 
vessel bound to New Orleans. All the money and pe- 
cuniary resources which he had reserved out of his 
property and now carried, consisted of about one hundred 
dollars in gold, and a letter of credit for one thousand 
dollars more. 



CHAPTER VII. 

EMIGRATION TO NEW" ORLEANS. 

Voyage, and Arrival at New Orleans — The City and its Inhabitants in 
1804 — Mr. Livingston's Exertions and Success at the Bar — His Home- 
sickness — His Professional Character and Public Spirit — His Code of 
Procedure for Louisiana — A Confusion of Tongues in the Courts — Elo- 
quence of Livingston before a Masonic Lodge — His Method as an Advo- 
cate — His Supremacy at the Bar — Note from Mazureau — Mr. Living- 
ston's Social Traits — His Taste for Mechanical Invention — His Second 
Marriage — Prospects of Pecuniary Success — Obstacles — Calumnious 
Attack upon Mr. Livingston by General Wilkinson. 

THERE is a brief and fragmentary journal of this 
voyage still existing, in Mr. Livingston's hand- 
writing, from the reading of which a stranger might 
infer that the distinctive faculties and tastes of the writer 
were observant rather than reflective, so lively an interest 
it shows in all he saw or could glean from the conver- 
sation of the taciturn master of the vessel. In this 
simple and natural record there is not a trace of sadness 
or regret, except the trivial disappointment which he felt 
on being prevented by the state of the winds from land- 
ing at the island of Abaco, before passing which he 
had enjoyed what he calls " a delightful anticipation of 
the pleasure of running over its surface, examining the 
trees, plants, and animals of a new climate, getting rid 
of the confinement of a cabin, and enjoying for a few 
hours the pleasure of fishing and shooting, both of which 
we are promised in great perfection." 

The ship reached New Orleans, after a passage of six 
and a half weeks, on the 7th of February, 1804-. The 
city then occupied the small rectangular space bounded 



112 LIFE OF EDWARD LIVINGSTON. 

by the river, and by Canal, Rampart, and Esplanade 
Streets, with a fort, built by the Spanish government, 
at each of the four principal corners. 

The population- of the city was, about the same time, 
ascertained to be 8056, including- 1335 free persons of 
color and S77^ slaves, — a number that was soon 
doubled and trebled. The citizens were, for the most 
part. Frenchmen and Spaniards, who had not seen France 
or Spain. These Creoles had some uniform physical 
traits, — the growth of their adopted climate, — distin- 
guishing them from their ancestral races. They had 
more beauty and less hardiness than their European 
cousins ; and analogous to and as distinctly marked as 
these outward peculiarities were certain of their qualities 
of mind and character. They were social, gay, and 
refined, but not ambitious, industrious, or enterprising. 
Those of French origin were the preponderant class, and 
French was the prevailing language. A few were edu- 
cated to write and pronounce with a reasonable con- 
formity to the Academy's standard ; but that high au- 
thority was not in general well observed by these remote 
provincials, and nowhere else on earth could the Parisian 
ear take in sounds so shocking as those which formed 
the patois of the negroes. 

The Creoles had taste for the art of good and elegant 
living, but had never been stirred, like the peoples of 
most countries, by the high emotions of patriotism. 
They had quietly submitted to be bought and sold and 
ceded, as a country, at the convenience or pleasure of 
their foreign masters. They had grumbled a little, but 
had not resisted, on being handed over to Spain ; and 
when the American flag was hoisted, in token of the 
transfer of Louisiana to the United States, the new ban- 
ner was greeted with huzzas only by older citizens of 



EMIGRATION TO NEW ORLEANS. Hg 

the great republic who were present, while the Creoles 
looked on with an air of well-bred indiflference. This 
was but a dozen years before the same people, aided by 
the heterogeneous numbers in the mean time added to 
them, defended their homes and the stars and stripes 
so sternly under Jackson. A rapid Americanization ! 
The Anglo-Saxon invader on that occasion met with an 
Anglo-Saxon resistance from a community made up of 
dissimilar races, speaking different languages, but all 
leavened with the spirit and courage of its newest comers. 

Livingston wasted no time, before taking the most 
direct and energetic steps in order to realize the purpose 
of his emigration. He made immediate use of his in- 
troductions, his reputation, and his address, received 
a prompt and hearty welcome from the community, and 
occupied at once a foremost position at the bar of his 
adopted city. He appeared as counsel in six causes in 
April ; and at the term of the Governor's Court, com- 
mencing on the 9th of May, in twenty-nine cases of very 
miscellaneous character. 

He now devoted himself wholly to business, and sel- 
dom left his chambers before evening, except to go into 
court. As a single object had taken him to Louisiana, 
that object alone kept him there and directed all his 
energy. Li the evening he walked, or visited the families 
of his new acquaintances. To his sister, Mrs. Garretson, 
he wrote, May 27th : — 

" My profession and other circumstances have given 
me a very extensive acquaintance in the province ; and 
the impressions I have received are very favorable to the 
character of the inhabitants. They are, in general, hos- 
])itable, honest, and polite, w^ithout much education, but 
with excellent natural abilities, and, in short, people with 
whom a man who had nothing to regret, might pass 

15 



n4< LIFE OF EDWARD LIVINGSTON. 

his life as happily as can be expected in any part of this 

uncertain world It now seems decided that I 

must be separated from all the friends of my early life 
for an uncertain length of time ; from some of them 
most probably forever. This is an idea I did not wish 
to entertain ; but circumstances have forced me to con- 
template it, until I have become enabled to regard it, 
if not with composure and tranquillity, at least with the 
resignation arising from necessity. The labors of a great 
portion, if not the whole of my life are now pledged 
to others, for I much fear that the losses on selling real 
estate will leave a large deficiency in the fund appropri- 
ated for my debts. I must make this up, and as I have 
a better prospect of effecting it here than at New York, 
I am in justice bound to remain. The separation from 
my children is the hardest trial ; but I cannot, without 
the greatest injustice to Julia, take her from the truly 
maternal protector she has found ; and I must try the 
effects of the summer climate before I will indulge myself 
with the society of my little Lewis, whose education T 
can myself direct." 

The separation from his children, which could not be 
prudently avoided, was, indeed, the most trying circum- 
stance of his situation. Julia, a child of rare beauty 
and most interesting mind and character, could oidy con- 
verse with her father at a distance of two thousand miles, 
and fortune removed the " little Lewis " to more than 
double that long distance. His aunt, the wife of General 
Armstrong, on the appointment of the latter as Minister 
to France in 1804^, took the boy with them to Paris, where 
he remained several years. The father wrote briefly but 
sadly of his " poor boy's departure," and declared that 
oiu.' of the worst evils of his exile was that he could 
not see the daily unfolding of a mind like Julia's. 



EMIGRATION TO NEW ORLEANS. 115 

He might have been sure of receiving a larger income 
in ready money, by indulging his inclination and remain- 
ing at New York. The advantage which he, with good 
reason, expected to realize at New Orleans, was a fa- 
cility of acquiring, in exchange for his services and in 
lieu of fees, property of greater prospective than present 
value, and thus investing his earnings in a mode assuring 
their rapid accunmlation. In this he was not mistaken. 
Ready money in large sums was not then ordinarily to 
be had at New Orleans for the services of an advocate, 
but liberal payments in lands were willingly made. In 
this way, he soon acquired the title to real estate which 
promised well to become a grand fortune within a few 
years. One of the earliest of these acquisitions was a 
property, on the shore of the Mississippi, adjacent to 
the city, called the Batture Ste. Marie, which alone — 
but for an unlooked-for and most untoward, as well as 
unjust and illegal opposition, which he was destined to 
meet at the hands of his former friend, the President of 
the United States, whose election, when trembling in the 
balance, as we have seen, his vote and steady conduct had 
helped to decide, — an opposition yielded in aid of local 
jealousies and temporary prejudice — would have made 
real, at an early day, his dream of independence. This 
opposition gave rise to a long and bitter controversy, to 
be hereafter detailed, — a controversy most interesting in 
itself, and one which brought into full play the genius 
and the character of Livingston. 

One would hardly expect a man so circumstanced, 
having so definite an object before him, and hoping 
to gain it speedily by professional exertions alone, and 
especially a man so qualified to profit by accurate and 
profound knowledge of all the intricacies of the system 
of English legal practice, to give himself much concern 



116 LIFE OF EDWARD LIVINGSTON. 

to exclude that system from Louisiana, or in favor of any 
project for a radical change and simplification of pro- 
ceedings at law, to enure only to the advantage of the 
community which he intended as soon as should be possi- 
ble to leave. But Livingston was one of those lawyers — 
a class never anywhere numerous enough, I am afraid — 
who feel that they are a responsible part of the court in 
which they practise, who believe their vocation to be to 
assist in the administration of justice, and who devote 
their exertions primarily to that duty, and then to the 
interests of their clients. 

In the November following- his arrival at New Orleans 
he evinced his habitual subordination of private interest 
to public good in a memorable manner. The recent 
cession of Louisiana, which had brought the territory un- 
der the Constitution of the United States, gave rise to 
a grave question in the courts, whether the clause in that 
instrument providing for trial by jury, and requiring the 
reexamination, in the courts of the United States, of any 
fact so tried to be according to the rules of the common 
law, had not, at one stroke, imposed upon Louisiana the 
whole system of English legal practice, unknown and 
repugnant as it was to a vast majority of her inhabitants. 
If this question had been decided in the affirmative, of 
course the lawyers who had emigrated thither from 
common-law States would have brought their peculiar 
knowledg^e to an excellent market ; and not one of them 
was equally qualified with Livingston to make much of 
such an advantage. The bar arrayed itself into two 
parties upon this question, and a cause was made up ex- 
pressly to obtain a full discussion and judicial settlement 
of the point. Mr. Livingston was selected as the lead- 
ing champion of those who contended, that, although the 
Federal Constitution had brought in the trial by jury, 



EMIGRATION TO NEW ORLEANS. 



117 



and made obligatory the observance of common-law rules 
in appellate proceedings in the Federal courts, yet that 
the courts and people of Louisiana were at liberty, in 
the main part of legal practice, to follow the ways to 
which they were accustomed, and even to adopt, if they 
chose, a svstem which should be to them more intellis-ible 
still. I have not found anything that could be called a 
report of the argument he delivered on this occasion ; 
but it produced a profound impression, and was long re- 
membered as a masterpiece of forensic reasoning and 
eloquence. The decision of the court was in accordance 
with the ground taken by Livingston. Following up this 
success, he recommended a simplification of the existing 
practice, which was a medley of the civil and Spanish 
law. The suggestion was accepted, and the task of 
drawing up a new code of procedure was committed to 
his hands. He performed the work promptly ; and when 
he had been in Louisiana but little above a year, the 
legislature adopted an entire system of practice proposed 
and framed by him. It is embodied in an act, passed 
on the 10th of April, 1805, consisting of twenty-two 
sections, and extending only to twenty-five printed pages. 
Under it, all suits were commenced by petition, addressed 
to the court and filed wMth the clerk, stating the names 
and residence of the parties, the cause of action, with 
places and dates, witliout prolixity, scandal, or imper- 
tinence, and concluding w^ith a prayer for relief. The 
defendant was brought into court by citation, issued by 
the clerk and served by the sheriff". On proof of service, 
and of failure to answer, judgment was entered in favor 
of the plaintiff". The defendant appearing and answering, 
either partv could demand a jury. Either plaintiff" or 
defendant might propose written interrogatories to the 
other, which the latter was bound to answer. The whole 



118 



LIFE OF EDWARD LIVINGSTON. 



machinery of attachments, holding to bail, execution, re- 
view of trials, amendments, compulsory attendance of 
witnesses and their examination, fines, references of in- 
tricate accounts, and the several writs known to the com- 
mon law, were all provided for in the act. 

This was certainly the shortest and simplest code of 
procedure which had existed since very primitive days. 
The professional reader will discern, in the above out- 
line of it, a clear resemblance between its leading features 
and those of some much later and more elaborate systems 
of practice. I have been assured by an aged and eminent 
lawyer and judge from Louisiana, that its practical work- 
ing was better than that of any of the systems with which 
he had been acquainted.* 

The administration of justice in Louisiana, at this 



* A quarter of a century later, 
Mr. Livingston, in a letter to Jere- 
my Bentham, gave the follouing 
reminiscences ot this short code ot 
procedure : — 

" A simple system was substituted, 
based upon the plan of requiring each 
party to state, in intelligible language, 
the cause of complaint and the grounds 
of defence. I comprised it in a sin- 
gle law of a few pages ; and al- 
though, from its novelty, many ques- 
tions may be naturally supposed to 
arise under it, before the court and 
suitors become accustomed to its pro- 
visions, yet our books of reports, from 
1808 to 1823, contain fewer cases 
depending on disputed points of prac- 
tice than occurred in a single year, 
1803, in New York, where they pro- 
ceed according to the English law, 
which has been in a train of settle- 
ments by adjudication so many hun- 
dred years. An anecdote to exem- 
plify this may not be unacceptable 
to you. When I was pursuing my 
profession at New Orleans, a young 
gentleman from one of the common- 
law States came there. He had been 
admitted to the bar in his own State, 



and was, of course, entitled to admis- 
sion in ours, if found by examination 
sufficiently versed in our laws ; he 
had studied them, and was ready to 
undergo the examination, but ex- 
pressed to me his regret that a long 
time must elapse before he could 
make himself master of the routine of 
practice, with which, in our system, 
he was entirely unacquainted, and, 
asking to be admitted into my office 
until that could be eifected, requested 
me, with much solicitude, to tell in 
what period I thought he might, 
with great diligence, be enabled to 
understand the rules of practice, so 
difficult to be acquired according to 
the common law. I answered that 
it was not very easy to calculate to 
an hour, but as he was engaged to 
dine with me the next day, at four, 
I thought I could initiate him in all 
the mysteries of the practice before 
we sat down to dinner ; nor was there 
any exaggeration in. the statement. 
What will your articled clerks, tied 
for seven )ears to an attorney's desk, 
say to this ? " — JForks of Bentham, 
edited by Bowring, vol. xi. page 
52. 



EMIGRATION TO NEW ORLEANS. 



119 



period, was attended with some of the inconveniences 
which interrupted the business at Babel. The records 
of the courts were kept in the Enghsh language. The 
process and pleadings were written and the proceedings 
conducted primarily in English. But it was often ne- 
cessary, and it was the constant practice, to translate the 
pleadings and afterwards all the evidence into French, 
Spanish, or German, and sometimes into all these, in 
order to reach the comprehension of the whole jury. A 
sworn interpreter was attached to the court, competent to 
speak all these languages. No advocate often attempted to 
address a jury in any but his mother tongue. So it was 
the common custom to employ at least two advocates on 
the same side, who followed each other, each in his native 
language. 

Mr. Livingston understood all these languages perfectly 
when spoken by others, and spoke them himself, — the 
French fluently and clearly, Spanish and German not so 
easily or so well. I have conversed with a gentleman 
who distinctly remembers hearing him argue more than 
one cause, but not many, in French. These were simple, 
ordinary, and perhaps unimportant cases. He would not, 
as my informant believes, have made the attempt in any 
other. 

Mr. Livingston was always a zealous member of the 
fraternity of Masons. He had held a high office in the 
order at New York, and soon after becoming a citizen of 
New Orleans, was chosen to preside over the Louisiana 
Lodge, then newly organized. At its first meeting, he, in 
an eloquent address, consecrated its hall, as a Temple to 
Harmony and Virtue. He referred to the past history 
and ])r('sent objects of the Masonic order, and defended 
its principles, and even its mysteries, as furnishing some 
antidote against the evils of partisan rage and personal 



1£0 LIFE OF EDWARD LIVINGSTON. 

discord. The original notes from which he spoke on this 
occasion are now lying before me. I quote from them 
the following passage, in order to relate a singular and 
immediate effect which its delivery produced : — 

" My brethren, have you searched your hearts 1 Do 
you find there no lurking animosity against a brother] 
Have you had the felicity never to have cherished, or are 
you so happy as to have banished all envy at his pros- 
perity, all malicious joy at his misfortunes ? If you find 
this is the result of your scrutiny, enter with confidence 
the sanctuary of union. But if the examination discovers 
either rankling jealousy or hatred long concealed, or even 
unkindness or offensive pride, I entreat you, defile not 
the altar of Friendship with your unhallowed offering ; 
but, in the language of Scripture, ' Go, be reconciled to 
thy brother, and then offer thy gift.' " 

When the orator had feelingly and impressively pro- 
nounced the last of these sentences, he was interrupted 
by a movement of two men in the audience immediately 
before him, who at that instant, with mutual sobs, rushed 
into each other's arms. They were veritable brothers, 
who, several years before, had become embroiled, and 
had not spoken together since. " No triumph at the 
bar or in the tribune," said Livingston afterwards, 
" could be worth the satisfaction I felt at that moment." 

Mr. Livingston's best successes at the bar were ac- 
complished by hard and direct blows. The truth could 
scarcely escape his search, and his method of making it 
appear plain to others was simple and usually concise. A 
contemporary writer said that he was " as lucid as day- 
light." A few propositions which, ordinarily, no one was 
prepared to gainsay, would lead straight to the conclusion 
he sought to enforce. This method in advocacy, coupled 
with a strong conviction of being in the right, gave him 



EMIGRATION TO NEW ORLEANS. J^J 

at times great power. But the effrontery of deliberate 
so})liistry he did not possess ; and if in the progress of a 
trial he discovered that he was clearly on the wrong side, 
he was thenceforth sometimes positively feeble. To this 
I have the testimony of those who have witnessed the 
change which came over him on such occasions. 

But there was no question about his early supremacy 
at the bar of New Orleans. The following tribute to his 
superiority — rather too warm to be literally translated 
into English — he received, on the afternoon of the day 
upon which he had spoken against the sweeping intro- 
duction of common-law practice into Louisiana, as an 
ordinary business communication from one who was 
perhaps better qualified than any other man there for 
a professional rivalship with him : — 

" 13 Novembre, 1804. 

" Monsieur : M. Alexandre doit venir me prendre, 
ce soir, pour nous reunir, chez vous, sur les 7 heures, afin 
de determiner le parti que nous avons a prendre relative- 
ment a la reponse a faire dans Taction intentee par St. 
Julien contre Declouet, Duralde, et autres. 

" Serez vous disj>ose a cette conference'? Ayezlabonte 
de me le faire dire. 

" Jusques la permettez moi que je vous paie le tribut 
do felicitations que merite la grande habilite avec laquelle 
vous avez traite, ce matin, la grande question de com- 
mon law. 

" Vous y avez deploye une eloquence rare ; j'avoue que 
je n'ai jamais ete plus emu que par les images frappantes 
que vous avez faites de tons les inconveniens qui resul- 
teraient de cette grande innovation, si elle avait lieu. 

" Vous avez ete profond depuis le commencement jusqu'a 
la fin de votre argument ou, pour mieux dire, de votre 
16 



12^ LIFE OF EDWARD LIVINGSTON. 

(liscours ; mais vous avez ete grand, sublime, admirable, 
etonnant, dans votre peroraison. 

" J'en suis encore plein de la plus vive et de la plus 
sainte emotion. 

" Heureux le peuple dont les interets seront defendus 
par un lionime tel que vous ! 

"Jaurais desire, et je desirerais que tous les Louisi- 
annais eussent ete presents a cette importante decision ; 
ils eussent ete bien ingrats, s'ils n'eussent pas partage 
tous les sentimens d'estime et de reconnaissance que 
vous professe " I'humble 

"E. Mazureau." 

Mazureau was the leading counsel against Livingston 
in a severe and important litigation soon to be referred 
to, — a litigation destined to exert a marked and perma- 
nent influence on the career of the latter. 

It is said that there were several eminent lawyers of 
the city who did not cordially enjoy Livingston's acknowl- 
edged superiority, and who would have been glad to have 
him out of their way. It is certain that he encountered 
very zealous and determined professional opposition in 
his endeavor to attain sudden fortune. But his temper 
was so mild and so genial that it was impossible for 
any one to have a personal dispute with him growing 
out of professional intercourse^ Even those to whom 
was ascribed the greatest jealousy of his position, con- 
sidered his presence indispensable at their social reun- 
ions. There he was always the soul of gayety and 
good-humor. His light jokes, stories, and puns were 
inexhaustible, and were given with peculiar spirit and 
dramatic effect. He was accustomed to act out the 
parts of the persons of his anecdotes, rising and illus- 
trating the matter, with glee of a contagious sort. There 



EMIGRATION TO NEW ORLEANS. 123 

was no satire in his conversation, no sharpness in his 
wit ; the charm of his society was in a whole-souled, 
laughing humor, a perfect freedom from the airs of offen- 
sive egotism, an absolute amiability. Judge Carleton, 
in giving the writer, after the lapse of half a century, his 
personal reminiscences of the occasions just mentioned, 
chuckled over the memory of Livingston's pleasantries. 
On being requested to call to mind some samples of the 
anecdotes referred to, he said that nothing could be more 
volatile than the substance of these anecdotes. The man- 
ner of telling them was the main thing about them. He 
could remember but three. One was that of Livingston's 
first lesson in eating pork at Esopus ; another was a live- 
ly description of the process of making sausages — which 
he called rollichers — by the farmers of Dutchess County; 
and the third was a story running as follows : A traveller 
stopped at an inn, near Rhinebeck, early in the morn- 
ing. The landlady, with her ladle, was salting some but- 
ter which had just been churned. She was a snuff-taker, 
and a quantity of the dust had settled at the tip of her 
nose, threatening to drop into the butter. She inquired 
of the guest, "Do you stay to breakfast? " " Madam," 
he replied, " as it may fall out." 

Mr. Livingston always took much interest in mechan- 
ical inventions, and, even when most pressed by profes- 
sional duties or personal cares, found some leisure to 
study the principles of mechanics, with a view to dis- 
covery and improvement. Often, side by side with the 
Pandects, and among his bundles of papers, one might 
see some small machine made for the purpose of illus- 
trating a novel idea. A carpenter who lived near him 
in New Orleans, and with whom he maintained the most 
friendly relations, usually had in hand some model under 
his direction. " It is singular," this man used to say. 



124 LIFE OF EDWARD LIVINGSTON. 

" that a lawyer should understand my trade so well as 
Mr. Livingston does ; I know nothing in the world of 
his." 

An ordinary acquaintance would not have discerned 
that Livingston, at this period, was otherwise than con- 
tented in his new home. But all his occupation and all 
his prospects of early success could not repress his in- 
ward anxiety to return to his family and native State. 
He counted the three or four years which he believed 
that he probably must remain absent from both, and 
sometimes shuddered to think of the possibility that the 
time might be considerably, perhaps indefinitely extended. 
At this period he endured, in fact, all the sorrows of an 
uncertain though voluntary exile. 

But for this homesickness he presently found a solace 
in his acquaintance and marriage, on the 8d of June, 
1805, with Madame Louise Moreau de Lassy, the young 
widow of a gentleman from Jamaica. The previous his- 
tory of this lady — with whom all the remainder of his 
life was to be passed in entire and mutual devotion — 
was eventful and interesting. Her maiden name was 
Davezac de Castera. Of her family I have seen an ac- 
count from the pen of M. Armand D'Avezac,* one of 
her relations, still living in Paris. This account shows 
the lineage to have been long and honorable. Mrs. Liv- 
ingston's more immediate ancestors had emigrated from 
France to St. Domingo, where they possessed much 
wealth and influence before the revolution in that island. 
In that bloody affair, her father, two brothers, and the 

* The correct and original orthog- in various parts of the world. For 

raphy of the name, the apostrophe be- a notice upon him and his v\ritings 

ing disused only by the members of 'vide (under the title " Avezac-Ma- 

the family in America. M. Armand caya, Marie-Armand-Pascal D' ") 

D'Ave<^ac is an eminent geographer, Dictionnaire Un'mersel des Contem- 

author of several works of merit, and porains, par Vapereau, Seconde Edi- 

member ot many scientific societies tion,page77. 



EMIGRATION TO NEW ORLEANS. 1^5 

aged grandmother met their fate, while her mother, her- 
self, a widow at the age of seventeen, her brother Auguste, 
afterwards Major Davezac, and her infant sister, who sub- 
sequently became the wife of Judge Carleton, of Louisiana, 
narrowly escaped massacre, reached the United States by 
different vessels, and were afterwards reunited at New Or- 
leans. From affluence they were reduced to poverty. It 
was in these circumstances that the acquaintance between 
her and Mr. Livingston was formed, and their alliance 
contracted. It is said that at this period her beauty was 
extraordinary. Slender, delicate, and wonderfully grace- 
ful, she possessed a brilliant intellect and an uncommon 
spirit. We shall hereafter have occasion to see that she 
had all the qualities requisite to appreciate, to stimulate, 
and in a great degree to guide such a man as Livingston. 

Yet he continued to chafe under the necessity of pro- 
lonoing- the absence from his children and his native State. 
On the 10th of August, two months after his marriage, he 
wrote to his sister, Mrs. Tillotson, — " I have now, indeed, 
again a home, and a wife who gives it all the charms that 
talents, good temper, and affection can afford ; but that 
home is situated at a distance from my family, and in a 
climate to which I cannot, without imprudence, bring my 
children." 

From his first appearance in the courts of Louisiana 
he had stood among the foremost members of the bar ; 
he was now the first lawyer among the foremost there. | 
His fireside was a happy one ; and to outward appearance 
all circumstances concurred to reconcile him to a perma- 
nent residence where he was. 

Yet in his heart, as we have just seen, he sighed for 
New York and for his old associations ; and everything 
seemed to favor the early accomplishment of his wishes. 
His income was increasing yearly, and he had acquired, 



126 LIFE OF EDWARD LIVINGSTON. 

besides the Batture, several valuable pieces of real estate, 
from which he had large hopes of soon realizing his 
main object. Some of these acquisitions he had already 
disposed of advantageously, and one of them, an exten- 
sive tract of land, he had cleared from all incumbrances, 
expecting for it an early market for a sum sufficient to 
enable him to pay his debt to the United States in full, 
leaving him possessed of still other property, enough for 
the foundation of a competence, if not a fortune. All 
within three years from his first landing, a stranger, in 
Louisiana. 

But obstacles and dangers were destined now to beset 
him, and to postpone the fulfilment of his plan for a 
period which even he would not then have been able to 
contemplate without discouragement and dismay. 

In the first place, he narrowly escaped a ruinous, if not 
fatal blow, from the hands of General James Wilkinson, 
Commander-in-Chief of the army of the United States. 
The latter had been on terms of intimacy with him dur- 
ing the first months of his residence at New Orleans, 
and then leaving for New York and Washington, had 
thence written to him letters expressing the highest ad- 
miration and warmest regard. Returning, he reached 
New Orleans in November, 1806. Mr. Livingston 
called upon him on the day of his arrival. The visit 
was returned, and the General supped at the house of 
his friend. During that evening, the latter mentioned 
casually to his guest that an order of Aaron Burr for 
money had been presented to him by Dr. Bollman, a 
short time before, to his surprise, as he could not con- 
jecture how Bollman, whose circumstances he had under- 
stood were narrow and embarrassed, should have such 
a sum due to him from Burr. The fact thus mentioned 
seemed to make no impression on the mind of the 



EMIGRATION TO NEW ORLEANS. 



127 



General, who continued to treat Mr. Livingston in a 
cordial manner, both then and at several visits which 
afterwards passed between them. 

This was just after Wilkinson, having encouraged the 
development of Burr's mysterious scheme, deeply soiling j 
his own hands with it, as it would seem, had concluded i 
to betray the scheme and its author. He had lately com- ! 
municated his knowledge and suspicions to the President 
of the United States, from whom he was now receiving 
orders of a plenary kind, justifying him in vigorous dis- ; 
cretionary measures for stifling the dreaded conspiracy < 
and bringing to punishment all who should be found 
among the conspirators. 

His first step, at New Orleans, was the military arrest 
and removal of Dr. Bollman and two other persons, — 
a j)roceeding which, as soon as it became known, startled 
and agitated the community. The indignation of a por- 
tion of the people, and particularly of members of the 
bar, was great. Mr. Livingston having but a very slight 
acquaintance with Bollman, and none at all with the 
other persons arrested, though he shared strongly in the 
general feeling of the lawyers on the subject, did not 
feel called upon to take any steps for the release of the 
prisoners. But a younger member of the profession, 
Mr. Alexander, prepared an affidavit of the fjict of the 
arrest, and applied to one of the judges for the allowance 
of a writ of habeas corpus. The judge refused to grant 
it then, but directed Mr. Alexander to make the motion 
in open court. The latter thereupon applied to Mr. Liv- 
ingston, to appear with and assist him in presenting the 
motion. He complied with the request, and the writ was 
allowed by the court. On the return day of the writ, 
a large audience was assembled in court, when General 
Wilkinson declared, in writing and in an oral speech. 



12S l^IFE OF EDWARD LIVINGSTON. 

that he had arrested Dr. Boll man on a charge of mis- 
prision of treason against the United States, and had 
taken measures to secure his safe delivery to the Presi- 
dent at Washington ; " that he had taken this step for 
the national safety, then menaced to its base by a lawless 
band of traitors associated under Aaron Burr, whose 
accomplices were extended from New York to New Or- 
leans." He proceeded to throw out hints calculated to 
excite in the minds of those present apprehensions of im- 
minent danger from an armed invasion of the territory 
under Burr, whose adherents, he said, were numerous 
in the city, including two counsellors of that court ! The 
speaker then cast his eyes slowly round the bar, seem- 
ing to enjoy the suspense which the members suffered 
till he inquired if Mr. Alexander were in court. Mr. 
Alexander being absent, the General requested that he 
might be sent for and committed to close custody, as he 
intended, before leaving court, to prefer against him a 
charge of high treason. He proceeded : " As to Mr. 
Livingston, I have evidence that Dr. Bollman brought 
a draft upon him for two thousand dollars and upwards, 
from Colonel Burr, which he paid." The General then 
read part of an affidavit, purporting to be made by one 
Rodgers, the substance of which was, that, nearly a year 
before, Rodgers had heard one Keene — a person who 
had been long absent from the country — say that there 
were a number of men who had agreed to undertake an 
expedition to Mexico, and on being urged to declare who 
these men were, had answered, " There's Livingston." 
But the affidavit added, that Rodgers had at the time 
" thought Keene so little in earnest, that the circumstance 
had not occurred to him until within a few days past." 

Upon this statement, the Commander-in-Chief of the 
army, and lately demonstrative friend of Mr. Livingston, 



EMIGRATION TO NEW ORLEANS. 



1^9 



held forth to the court and the people assembled, in justi- 
fication of the arrests already made, and of others which 
he might yet have to make ; declaring, amongst other 
things, that " desperate cases require desperate remedies ; " 
that " it is sometimes necessary to cut off a limb to 
preserve the body," to " lop off a rotten branch to save 
the tree." He finished by asking the court that his oath 
might be taken to the truth of the charges he had ex- 
hibited. He raised his hand as if to have the oath ad- 
ministered, when the court mildly suggested the propriety 
of reducing the statement to writing. He then hesitated. 
One of the judges offered him a seat at his side on the 
bench, and proposed himself to take down the charges 
and testimony. This the General declined ; upon which 
the court suggested that one of the judges would wait 
on " His Excellency," * at any time that might be con- 
venient to him, to take his deposition. This offer the 
conquering hero condescended to accept, and retired from 
the bar, after receiving the thanks of the presiding judge 
for his communication, and an apology for the trouble 
the business had caused him. 

But just as Wilkinson was about to withdraw, Mr. 
Livingston, who, till then, during this shocking scene 
of judicial sycophancy, had sat in melancholy silence, 
arose to demand and then to entreat of the court that his 
accuser should not be allowed to leave the bar without 
substantiating his charge upon oath, in order that, if it 
should appear that he was guilty, he might be imme- 
diately committed to prison, and if not, that he should 
not be compelled to go home loaded with the suspicion 
of crime. The appeal was fruitless, and the General 
went his way, promising, however, to make good the 
charge on the following day. 

* Wilkinson was Governor of Upper Louisiana. 
17 



130 LIFE OF EDWARD LIVINGSTON. 

Mr. Livingston now demanded an opportunity, before 
the court and audience, on the spot, to meet the accusation, 
so far as it had been made specific. After some difficulty 
and hesitation this request was granted; and he thereupon 
made a full and simple statement of all the circumstances 
connected with the draft of Burr, which he produced and 
read. Among the private debts which the transfer of 
all his property, before leaving New York, had left un- 
provided for, was a claim held by the firm of Dunham & 
Davis, upon which judgment had been entered against 
him. The judgment had been assigned to Aaron Burr, 
and Mr. Livingston had once or twice been called upon 
to pay the debt, before it was possible for him to do 
so. The draft given by Burr to Dr. Bollman ran as 
follows : — 

" Dr. Sir : Doctor Bollman will receive whatever 
you may be disposed to pay him on my account, and 
will give a discharge on payment of fifteen hundred 
dollars. A part, at least, of this sum will be necessary 
to him ; but I should not have troubled you if I could 
have paid him from other resources. 

"A. Burr. 

" Philadelphia, 26th July, 1806. 
" To Edw. Livingston, Esqre." 

When this paper was presented by Dr. Bollman, Mr. 
Livingston was entirely unprepared to pay the sum de- 
manded. But he had recently sold a plantation, receiv- 
ing the purchaser's obligations, not yet due, in part pay- 
ment. After two months' delay and negotiation, he had 
arranged with this debtor to accept his draft for the 
amount required to satisfy that held by Bollman ; and 
so the latter was taken up, and Bollman received the 
money. 



EMIGRATION TO NEW ORLEANS. IgJ 

As to the matters of hearsay vaguely set out in the 
affidavit of Rodgers, Mr. Livingston made a most impres- 
sive declaration that he was utterly ignorant of any of the 
plans which it was said Colonel Burr was executing, 
either for dismembering the Union or contravening its 
laws, except what he had heard from the newspapers, the 
communication of General Wilkinson, or public report ; 
and that he had never held any communication, either 
written or verbal, with Colonel Burr, or any other per- 
son whom he knew or suspected to be concerned with 
him in the subject of those plans. 

The effect of this prompt and spirited self-defence, 
upon those who listened as well as upon his accuser, 
was afterwards recounted by Livingston in the follow- 
ing language : — 

" There is a force in the language of truth, there 
is a commanding aspect in the looks of innocence, that 
can rarely be assumed by falsehood or guilt ; and I am 
persuaded few if any of my auditors retired with im- 
pressions to my prejudice. The General seems to have 
thought so too ; for, on the following day, when I went 
to court to hear the charges he had engaged to exhibit, 
I met a gentleman of his family, who, in answer to 
my earnest inquiry whether the General's affidavits were 
prepared, told me that intelligence had arrived which 
did not leave him leisure to attend to them, and that 
he did not believe they would that day be produced. 
Seeing my extreme chagrin at this delay, he told me 
he was persuaded that the General would feel much 
gratified, if I could exonerate myself from the charge ; 
that he had been forced into the accusation by imperious 
circumstances, but that he had little doubt, if I could 
remove his suspicions as to the payment of the money 
to Bollman, (which, he added, was the principal circum- 



IS2 LIFE OF EDWARD LIVINGSTON. 

Stance,) he would be ready to do me ample justice, and 
concluded by suggesting the propriety of my calling on 
the General. This I refused to do, but said that I would 
reflect on the other proposition ; and after consulting 
with some friends, I determined to send the papers I 
had read in court, with some others which I was sure 
must remove every doubt as to the nature of the trans- 
action. Meeting the gentleman shortly after, I told him 
my determination ; and he appointed an hour to call on 
me for the documents, and expressed a joy which I am 
sure he felt, on the prospect of an arrangement that 
would do full justice to my character. He arrived soon 
after the hour appointed, but apologized for the delay 
by stating that he had since been to the General ; that 
he was desirous to do me justice, and anxious that I 
should exonerate myself from the charge, but that it 
was absolutely necessary he should see me, in order to 
show some papers which had been exhibited, and which 
I understood were to explain the reasons why he had 
thought himself obliged to accuse me ; but that the pay- 
ment of the money to Bollman was still the principal 
charge, and this being explained, he would almost ven- 
ture to pledge himself that General Wilkinson would 
appear in an open court, to be called at his request, 
and make any statement I could reasonably desire, to re- 
move the effect of his charge. The idea of presenting 
myself and making explanations to a man who had so 
cruelly injured me, appeared, at first, too humiliating to 
be borne ; but the pain which these accusations must 
give to my friends at a distance, the humiliating cir- 
cumstances attending a newspaper assertion of innocence, 
the certainty that it could never be so effectually done 
as by the mode proposed, and — shall I be called pusillan- 
imous ^ when I add — the fear of inevitable ruin to my 



EMIGRATION TO NEW ORLEANS. 133 

family from a military arrest and removal, all concurred 
to produce the reluctant assent, which, after a delay of 
some hours, I gave to the proposition of calling at head- 
quarters in company with a friend. Eight in the even- 
ing was the hour appointed. The gentleman to whom 
I before alluded was so perfectly persuaded that the 
visit would end in the most satisfactory arrangement, 
and expressed so friendly a pleasure in the prospect, that 
I could scarcely believe him in earnest, when, at the hour 
appointed, with a mortification he did not attempt to 
conceal, he met me on the gallery, at head-quarters, with 
a message, ' that the General had just received a letter 
which determined him not to see Mr. Livingston, or 
any of his friends.' This cruel insult, added to the 
injuries I had received, made me feel the humiliation 
to which I had exposed myself; and I returned home, 
with the full persuasion that I should find the guard 
for my arrest stationed at my door." 

But his apprehensions of arrest were happily not re- 
alized. Alexander was seized, and hurried, with others, 
as Bollman had been, forcibly, to Washington, where 
nothing could be proved against them. Mr. Livingston, 
being unmolested, so far defied the military tyrant as 
to make an ineffectual attempt to rescue Alexander by 
the writ of hcibeas corpus ; and he published, on the spot, 
an address to the people, setting forth all the particulars 
of the transaction, and expressing his views and senti- 
ments concerning it, without reserve or any sign of 
fear. 

When he returned to his house after the scene in 
court, in which the accusation of Wilkinson had fallen 
suddenly as a thunderbolt upon him, his young wife, 
then the mother of their only child, but a few months 
old, besought him earnestly not to withhold from her 



lS4f LIFE OF EDWARD LIVINGSTON. 

any part of his confidence. " We have not hved long- 
together," she said, " and you may not know the whole 
strength of my character or of my affection. Whatever 
may have been the scheme of Burr, if you have had 
anything to do with it, tell me, so that I may share 
your thoughts as well as your destiny." His response 
was a laugh so hearty as to dispel in an instant from 
her mind any shadow of fear that he was really im- 
plicated in the mysterious enterprise. 

In the obvious characters of these two men, — Wilkin- 
son and Livingston, — upon one of whom Thomas Jef- 
ferson, by a twofold error, was now deliberately bestow- 
ing the confidence which he had deliberately withdrawn 
from the other, there is a good illustration of the prac- 
tical weakness of human judgment. And the mutability 
of a great man's judgment is still more manifest in the 
fact that Mr. Jefferson, though then in the decline of 
life, was yet to live long enough to reverse completely 
in his own mind the double misconception under which 
he was judging and acting towards both, — at least, as 
will hereafter appear, towards Livingston. 

Thus a grave danger was fortunately and narrowly 
escaped. The imputation was disposed of thoroughly, 
and no damaging effect remained. Wilkinson's position 
at New Orleans soon became ridiculous, and every cloud 
seemed lifted from the prospects of Mr. Livingston. 
The object of his most ardent desire was in a fair way 
to be accomphshed. But he soon ' had to encounter a 
new difficulty, and a more formidable adversary, — a 
misfortune not so alarming as the one just avoided, but 
many times more vexatious. 



CHAPTER VIII. 
THE BATTURE CONTROVERSY. 

A CONTROVERSY, very celebrated in its day, 
which took place between Thomas Jefferson, Presi- 
dent of the United States, and Edward Livingston, citi- 
zen of Louisiana, relating to the title and possession 
of a piece of ground called the Batture Ste. Marie, 
was one of the most interesting mental encounters ever 
witnessed anywhere. There was every circumstance to 
make it so in the relative positions, the ability, the in- 
terest, and the temper of the parties. They had been 
attached personal friends ; but one had become es- 
tranged in consequence of the misfortune, which he also 
regarded as the fault, of the other. In politics, one 
had founded a sect of which the other had, in youth, be- 
come a disciple, — - a faith from which the latter never 
swerved during a long life. The President had ap- 
pointed Mr. Livingston to an office, implying a financial 
confidence which, he felt, had been disappointed ; and 
Mr. Jefferson's charity did not easily cover such a 
case. Besides, the then recent accusation of Wilkin- 
son had doubtless left its bad impression upon his mind. 
Being thus predisposed to view in the least favorable 
light any act of his adversary which might be construed 
as an encroachment upon the public right, he was led, by 
the first representations he received concerning Mr. Liv- 
ingston's Batture enterprise, into an opinion which turned 
out to be mistaken ; and was hurried, by his zeal, upon 



136 LIFE OF EDWARD LIVINGSTON. 

a course which he finally, with good reason, regretted. 
In this mood he gave to the controversy, both while in 
office and for a period after his retirement, the best re- 
sources of his mind and energy ; studying for himself the 
most recondite applicable topics of the civil and the com- 
mon law, and of the French and Spanish systems, mar- 
shalling the focts with all his skill, for the use of counsel, 
and finally printing, for his own justification before the 
public opinion of the country, careful and repeated edi- 
tions of a most elaborate and finished argument, built 
of these labors. With his official vantage, a concurring 
Cabinet and Congress behind him, and popular prejudices 
favoring his action, an ordinary antagonist he would have 
easily annihilated, and might himself have remained for 
life unconscious of his error ; as it was, he must have 
concluded at last that he had been fairly dislodged from 
a false position in a manner more effective than tender. 
His blows were indeed aimed at a wounded giant, who, 
feeling that he was in the right, and that his own escape 
from temporal ruin was staked upon the result of the 
conflict, exerted to the utmost every muscle and nerve 
to beat back the assailant. 

When two champions of such figure engage with de- 
liberation and spirit in a strife of this sort, all men are 
pugilistic enough to be refreshed by the spectacle. The 
combat here attracted and held public attention for years, 
in an unusual degree ; both combatants in the course of 
it freely appealing, in print, for moral support directly 
to the people of the United States. Various volumes 
of law-reports are largely given to the arguments of 
counsel and decisions of the courts at different stages 
of the proceedings ; and elaborate and voluminous re- 
views of the controversy by the two ])rincipals passed 
through more than one edition. I propose to give in 



THE BATTURE CONTROVERSY. Jg^ 

this chapter a concise account of the subject and man- 
ner of the dispute. 

The region bordering- upon both sides of the Missis- 
sippi River, for about one hundred and fifty miles above 
its mouth, is a low, alluvial country, apparently created 
upon the sea by annual deposits of the upper country's 
soil brought down during many ages by the turbid 
stream. As in other countries thus formed, the imme- 
diate natural banks of the river are higher than the 
general surface of the ground behind them. The ordi- 
nary height of the water in the channel is but a few feet 
lower than the top of the natural banks. During half 
of every year, the rains and melted snows of the vast 
region which the river drains swell its current towards 
the mouth to a height above that of the natural banks, 
so that the whole of the lower country referred to, in- 
cluding the site of New Orleans, was, before its civilized 
occupation, yearly overflowed for several months. This 
inundation was afterwards prevented by the erection on 
each shore of a narrow dike, called a levee, along the 
top of the natural bank, high enough to confine the 
waters in their most swollen state. The river being 
deep and muddy, and pursuing a winding course, neces- 
sarily, when thus restrained, wrought many gradual 
changes in the line of the shores, adding at some points 
a constantly increasing soil to one side, and carrying away 
compensation from the other. 

Early in the last century, the society of .Jesuits, under 
grants from the King of France, became possessed of 
some lands on the bank of the Mississippi, adjacent to 
the city of New Orleans. In IJ^^^ and just before the 
cession to Spain of the province of Orleans, the order of 
Jesuits was abolished in France, and its property was 

forfeited to the Crown. Under an edict of eonfiscation, 

18 



X38 LIFE OF EDWARD LIVINGSTON. 

the land just mentioned was seized and sold. That part 
of it nearest the city afterwards came to the possession 
of Bertrand Gravier, who divided it into suburban lots, 
which he sold and conveyed to several purchasers. In 
the mean time, the river was every year depositing allu- 
vion in front of the whole ground. The deposit being 
lower than the levee, was, in the season of low water, 
uncovered, but submerged during the time of the an- 
nual flood, so that it could serve as an anchorage some- 
times, and sometimes as a quay; and, being convenient 
to the people of New Orleans, it came to be used a good 
deal for these purposes without question. This new 
ground was called the Batture Ste. Marie. 

Bertrand Gravier dying, without children, a little be- 
fore the transfer of the province to the United States, his 
brother John inherited his property by a process known 
to the civil law, which gave it to him, according to his op- 
tion, in the character of a purchaser, and exempted him 
from liability for the debts of the estate beyond the prop- 
erty's inventoried value. The attention of John Gravier 
was soon turned to the condition of the Batture, and his 
own rights with respect to it; and as early as 1803 he 
enclosed a portion of it with a fence. But no very defi- 
nite claim to the exclusive possession of the ground as 
property was set up by him, or by the pubHc, or by any- 
body, until Mr. Livingston opened his law-office in New 
Orleans, and John Gravier became one of his first clients. 
Being called upon for his advice, he learned the history 
of the ground, investigated the law relative to the rights 
of riparian owners in such cases by studying tlie Roman, 
the Frencli, the Spanish, and the English regulations upon 
the subject, and then declared his opinion to be that John 
Gravier was the legal owner of the principal part of the 
Batture Ste. Marie. 



THE BATTURE CONTROVERSY. 139 

The rapid growth of New Orleans had now commenced, 
and Livingston at once perceived that, if his professional 
opinion was sound, there was value enough in the prop- 
erty for several fortunes. This rural bank must soon 
give place to urban wharves like those of New York. 
Ah! here was a mine to be worked, and opportunity to 
escape from bankruptcy at a single bound, instead of 
trudging only the tedious road of careful industry. He 
immediately undertook the prosecution of legal proceed- 
ings on behalf of Gravier, to secure an undisturbed pos- 
session of the ground, and purchased a portion of the 
property for himself. If he could have foreseen the va- 
riety and extent of the obstacles before him, — the weary 
war of arguments, demurrers, and appeals ; of popular 
prejudice and mob violence ; of forcible official opposi- 
tion from the executives of two governments, — the Ter- 
ritorial and the National ; of laborious correspondence ; 
of voyages to Washington; of petitions to Congress; 
of ridicule, scorn, and slander, — probably he would have 
taken the longer and more quiet path to fortune. But 
wliether or not he would have avoided entrance to the 
quarrel, he chose, being in, to bear it, with what spirit 
the reader will have an opportunity to see. In the end, 
though failing, through the law's delay and the vacillat- 
ing action of a local court, to reap the full material ad- 
vantages to which he had looked forward, yet he achieved 
a complete moral victory, — his latest triumph being, as I 
sliall have occasion to show, over the inveterate preju- 
dices of his celebrated adversary. The contest proved a 
clear advantage to his rej)utation, though a clog to his 
fortune and a Will-o'-the-wisp to his persistent exertions. 

The suit of Gravier was against the city of New Or- 
leans, and his prayer to the court was for the confirma- 
tion of a quiet title. The litigation proceeded without any 



140 LIFE OF EDWARD LIVINGSTON. 

noise tor two vears. till early in 1S07, when judgment 
was pronounced in the plaintiff's favor, one of the three 
jndiies delivering- a dissenting opinion. Soon afterwaixls 
Mr. Livingston entered upon his portion of the property 
and coninienced improving it. Then tliere was connnotion 
in the cirv. The people suddenly awoke to the percep- 
tion of a great danger and a grievous wrong. They 
had piled wood and merchandise upon the Batture Ste. 
Marie and had carried away earth from it at pleasure 
for some years ; why should they not continue to do so ? 
The ground had helonged to nobodv ; therefore it ^\*as 
theirs. They had before looked upon Livingston as a 
great lawyer ; he now became in their eyes a sort of 
legal Mephistopheles. — a being of such more than mort;d 
subtlety diat he threatened to employ the forms of law 
to ap})ropriate whatever he might covet. This kind of 
art had made him rich in a day ; and besides, it was his 
intention to proceed at once to such a use of the Batture 
as to dam the ^lississippi. or. at the least, to turn its 
chaimel so as to inundate the country, drown the city, 
— and. of course, sink his new fortune. His work upon 
the ground was presented by the grand jury as a nui- 
sance. His laborers were, more than once, driven from 
their employment by the populace. The Governor of 
the Territory — Claiborne — was appealed to for mili- 
tary interference. Being a timid, or at least a peaceable 
man, he quieted the tumult for the time, by promising 
an immediate reference of the whole matter to the Gen- 
eral Government. 

A messenger was despatched to Washington to re- 
port tlie facts, and represent that, in the Governor s opin- 
ion, the Batture Ste. Marie leo^allv belonged to the 
Lnited States as sovereign of the soil. The President 
took up tlie subject with livelv interest. Cabinet de- 



THE BATTURE CONTROVERSY. I41 

liberations were devoted to it. The Attorney-General 
was called upon for his opinion in writing, which, when 
j»roduced, was in favor of the title of the United States. 
Mr, Livingston was held to be an intruder. Prompt 
and efficient measures were taken to extinguish his en- 
terprise. The Marshal of the District of Orleans was 
instructed by a letter of the Secretary of State, of No- 
vember 30, I8O7, "to remove immediately by the civil 
power any persons from the Batture Ste. Marie who 
had taken possession since the 3d of March ; " and the 
Secretary of War simultaneously ordered the command- 
ing officer at New Orleans to use military force for the 
same object, if required by the Governor. 

The Marshal found Mr. Livingston's men at work 
on the ground. At his command they desisted, but soon 
returned by direction of their employer. An order was 
obtained from a judge of the Superior Court of the 
Territory and served upon the Marshal, forbidding his in- 
terference, under pain of a contempt of court. He disre- 
garded the injunction, and dispossessed Mr. Livingston. 

The business of the controversy was now fairly opened. 
Mr. Livingston brought an action against the Marshal, 
in the Federal court at New Orleans, to recover, accord- 
ing to the forms of the civil law, damages for his ex- 
pulsion, and a restoration to possession, and, somewhat 
later, another action for damages against Mr. Jefferson, 
in the district of the latter's residence. He published 
pamphlets upon the subject. He made Congress ring 
with his complaints. He besieged the Executive with 
offers to submit his claim to any form of trial or arbi- 
tration, whilst loudly demanding a hearing of some sort;. 
But all his labors were without fruits, so far as the ac- 
tion of any branch of the government was concerned. 
If the President had been a mild despot, in character 



142 LIFE OF EDWARD LIVINGSTON. 

and in power, he could not have held his enemy in a 
stricter helplessness for the time heing. Congress was 
friendly to him and deaf to the subject. He utterly re- 
fused or neglected every entreaty for a fair, or any, 
hearing of the case on its merits. In the personal action 
against himself, he turned the plaintiff out of court by 
demurring to the jurisdiction. The latter seemed to 
be, and began himself to feel like, a ruined man. He 
afterwards declared, that during this period he keenly 
felt all that Spenser describes in the lines, — 

" Full little knowest thou, that hast not tride. 
What hell it is, in suing long to bide ; 
To loose good days that might be better spent ; 
To wast long nights in pensive discontent ; 
To speed to-day, to be put back to-morrow ; 
To feed on hope, to pine with feare and sorrow ; 
To fret thy soul with crosses and with cares ; 
To eate thy heart through comfortlesse dispaires ; 
To fawn, to crowche, to waite, to ride, to ronne, 
To spend, to give, to want, to be undonne." 

Years went by, and Mr. Jefferson passed out of office. 
Mr. Livingston had resumed the more even tenor of 
professional life, and had made advances in public esti- 
mation. The litigation of the cause against the Marshal 
at New Orleans was approaching a decision. There was 
a manifest modification of the popular sentiment, with 
respect to the merits of the case. It now occurred 
to the ex-President that if the judgment of the court 
should be pronounced in Livingston's favor and followed 
by acquiescence on the part of the public of New Or- 
leans, his own conduct would require careful explanatory 
treatment to make it appear at all excusable. It would 
then be clear, that, acting upon ex parte representations, 
and refusing to hear both sides, he had forcibly invaded 
the rights of a citizen, because he had the physical power 
to do so, and because it happened to be a case in which 



THE BATTURE CONTROVERSY. 143 

his own sentiments had been in unison with those of a 
mob. The result of this kind of reflection was that he 
furbished, at leisure, the notes and argument which he 
had before prepared for the use of counsel, left it all 
bristling- with vituperation and ridicule of his adversary, 
and printed the whole for circulation through the country 
in 181^2. This paper is a pamphlet of ninety-one pages, 
entitled " The Proceedings of the Government of the 
United States, in maintaining the Public Right to the 
Beach of the Mississippi, Adjacent to New Orleans, against 
the Intrusion of Edward Livingston. Prepared for the 
Use of Counsel, by Thomas Jefferson." The author, in 
1814*, by request of the Editor of the "American Law 
Journal," printed at Baltimore, furnished a copy, with 
additional notes, for republication in the same number 
of that periodical in which first appeared " An Answer 
to Mr. Jefferson's Justification of his Conduct, in the 
Case of the New Orleans Batture. By Edward Living- 
ston. Nullce sunt occultiores insidice^ quam quae latent in 
simulatione officii, aiit in aliquo necessitudinis nomine. 
Cicero," — a pamphlet of one hundred and ninety-five 
pages. 

Mr. Jefferson, by his official action in this affair, com- 
mitted a serious error which proved a serious outrage. 
His self-vindication just mentioned was a laborious blun- 
der; for it called forth a reply from Mr. Livingston of 
which no man could well afford to be the subject, — a 
performance, in its kind, never surpassed, I presume, 
by any lawyer. The author of the Declaration of In- 
dependence was, on political subjects, the wisest and 
most eloquent writer of his time. But it was a mistake 
for even him to challenge and provoke such an opponent 
as Edward Livingston, under the circumstances above 
detailed. 



144< LIFE OF EDWARD LIVINGSTON. 

In method the disputants differed greatly. Mr. Jef- 
ferson's paper, though reheved by frequent sharp and 
rapid incidental thrusts at his adversary, is a rather dry 
and labored disquisition, upon topics for the most part 
now of little interest to any but the legal scholar. The 
answer, though in its stating and strictly argumentative 
parts as concise and direct as the other, is yet so over- 
laid with riches of style, pungency of satire, and fulness 
of eloquence, that, in spite of its length, its entire pe- 
rusal will, at any time, delight the educated reader. 

Mr. Jefferson begins at once with his ingenious ver- 
sion of the facts, having made the following exordium 
in the form of a preface : — 

" Edward Livingston, of the Territory of Orleans, hav- 
ing taken possession of the beach of the river Mississippi, 
adjacent to the city of New Orleans, in defiance of the 
general right of the nation to the property and use of 
the beaches and beds of their rivers, it became my duty, 
as charged with the preservation of the public property, 
to remove the intrusion, and to maintain the citizens of 
the United States in their right to a common use of 
that beach. Instead of viewing this as a public act, 
and having recourse to those proceedings which are 
regularly provided for conflicting claims between the 
public and an individual, he chose to consider it as a 
private trespass committed on his freehold, by myself 
personally, and instituted against me, after my retirement 
from office, an action of trespass, in the Circuit Court 
of the United States for the District of Virginia. 

"Being requested by my counsel to furnish them with 
a statement of the facts of the case, as well as of my 
own ideas of the questions of right, I proceeded to make 
such a statement, fully as to facts, but briefly and gen- 
erally as to the questions of right. In the progress of 



THE BATTURE CONTROVERSY. I45 

the work, however, I found myself drawn insensibly into 
details, and finally concluded to meet the questions gen- 
erally which the ease would present, and to expose the 
weakness of the plaintiff's pretensions, in addition to the 
strength of the public right. These questions were, of 
course, to arise under the laws of the Territory of Or- 
leans, composed of the Roman, the French, and the 
Spanish codes, and written in those languages. The 
books containing them are so rare in this country as 
scarcely to be found in the best furnished libraries. Hav- 
ing more time than my counsel, consistently with their 
duties to others, could bestow on researches so much 
out of the ordinary line, I thought myself bound to fa- 
cilitate their labors, and to furnish them with such ma- 
terials as I could collect. I did it by full extracts from 
the several authorities, and in the languages in which 
they were originally written, that they might judge for 
themselves whether I had misinterpreted them. These 
materials and topics, expressed in the technical style of 
the law, familiar to them, they were of course to use 
or not to use, according to the dictates of their own bet- 
ter judgment. If used, it would be with the benefit of 
being delivered in a form better suited to the public ear. 
I passed over the question of jurisdiction, because that 
was one of ordinary occurrence, and its limitations well 
ascertained. On this, in event, the case was dismissed ; 
the court being of opinion they could not decide a ques- 
tion of title to lands not within their district. My wish 
had rather been for a full investigation of the merits at 
the bar, that the public might learn, in that way, that 
their servants had done nothing but what the laws had 
authorized and required them to do. Precluded now from 
this mode of justification, I adopt that of publishing what 
was meant originally for the private eye of counsel." 

19 



14-6 LIFE OF EDWARD LIVINGSTON. 

This preface is dealt with and the whole subject 
opened by Mr. Livingston in the following passage : — 

" When a public functionary abuses his power by an 
act which bears on the community, his conduct excites 
attention, provokes popular resentment, and seldom fails 
to receive the punishment it merits. Should an individ- 
ual be chosen for the victim, little sympathy is created 
for his sufferings, if the interest of all is supposed to 
be promoted by the ruin of one. The gloss of zeal 
for the public is therefore always spread over acts of 
oppression, and the people are sometimes made to con- 
sider that as a brilliant exertion of energy in their favor, 
which, when viewed in its true light, would be found a 
fatal blow to tlieir rights. 

"In no government is this effect so easily produced as 
in a free republic ; party spirit, inseparable from its ex- 
istence, there aids the illusion, and a popular leader is 
allowed in many instances impunity, and sometimes 
rewarded with applause for acts that would make a ty- 
rant tremble on his throne. This evil must exist in a 
degree, — it is founded in the natural course of human 
passions ; but in a wise and enlightened nation it will 
be restrained ; and the consciousness that it must exist 
will make such a people more watchful to prevent its 
abuse. These reflections occur to one, whose property, 
without trial or any of the forms of law, has been vio- 
lently seized by the first magistrate of the Union, — who 
has hitherto vainly solicited an inquiry into his title, ^ — 
who has seen the conduct of his oppressor excused or 
applauded, — and who, in the book he is now about to 
examine, finds an attempt openly to justify that conduct 
upon principles as dangerous as the act was illegal and 
unjust. This book relates to a case which has long been 
before the public, and purports to be the substance of 



THE BATTURE CONTROVERSY. X4<7 

instructions prepared by Thomas Jefferson, late President 
of the United States, for his counsel, in a suit instituted 
by me against him. After four years' earnest entreaty 
I have at length obtained a statement of the reasons 
which induced him to take those violent and unconstitu- 
tional measures of which I have complained. 

" It would perhaps be deemed unreasonable to quarrel 
with Mr. Jefferson for the delay, when we reflect how 
necessary Mr. Moreau's Latin and Mr. Thierry's Greek, 
Poydras's elegant invective, and his o\a'ti Anglo-Saxon 
researches were to excuse an act for which, at the time 
he committed it, he had no one plausible reason to allege. 
Such an act, certainly, is easier to perform than to jus- 
tify; and Mr. Jefferson has been right in taking four 
years to consider what excuse he should give to the world 
for his conduct, and still more so in laying under con- 
tribution all writhigs, all languages, all laws, and in call- 
ing to his aid all the popular prejudices which his own 
conduct had excited against me. He wanted all this 
and more, to make a decent defence. But it was rather 
awkward to press into his service facts which, it is con- 
fessed, he did not know at the time, and something worse 
than awkward to impose on the public, as I shall show 
he has, by false translatmis and garbled testimony. But 
we must excuse the late President : ' his tvisJi had rather 
been for a full investigation of the merits at the bar, 
that the pid)lic might learn, in that way, that their ser- 
vants had done nothing but tvhat the laws had author- 
ised and required them to do,' and ' precluded nov) 
from that mode of justification, he adopts that of publish- 
ing tvhat IV as meant originally for the private eye of 
counsel.' I give the words of the author here, lest in 
this extraordinary sentence I should be suspected of 
having misrepresented or misunderstood him. An in- 



14.8 LIFE OF EDWARD LIVINGSTON. 

dividual holding a tract of land, under one whose title 
had been acknowledged and whose possession had been 
confirmed by a court of competent authority, is violently 
dispossessed by the orders of the President of the United 
States, without any of the forms of law and in viola- 
tion of the most sacred provisions of the Constitution ; — 
the ruined sufferer seeks redress, first by expostulation ; 
he offers to submit to the decision of indifferent men, 
and he is refused ; he offers to abide by the sentence 
of men chosen by the President, and he is refused ; 
he offers, in the simplicity of his heart, to acquiesce in 
the opinion even of the President himself, and he is re- 
fused. He is not even permitted to exhibit his proofs. 
Fearing the conviction they would produce, he is told that 
though the President could take, he cannot restore ; that 
he can injure, but not redress ; and that Congress alone 
are competent to grant him relief. To Congress then 
he applies ; — here the same baleful influence prevails. 
After two voyages of three thousand miles each, after 
two years of painful suspense and humiliating solicitation, 
after an attendance of three sessions, he finds that no 
means can be devised for his relief; that the friends of 
that man who ' tvishes for a full investigation of the 
merits at the bar ' defeat every plan for bringing the cause 
before a court, vote against every law providing for a 
trial, and effectually, as they think, and he hopes, bar all 
access to any tribunal where the dreaded merits of the 
case could be shown. Harassed but not dispirited, the 
injured party, finding that no legislative aid can be ex- 
pected to restore his property, at length applies by suit 
for a compensation in damages ; he appeals to the laws 
of his country, and is willing to abide by the decision 
of a jury, in a country where long residence, great 
wealth, the influence which had been created by office, 



THE BATTURE CONTROVERSY. 149 

and a coincidence of political opinion gave every advan- 
tage to his opponent. Here, then, is an opportunity which 
a man desirous of open investigation will not neglect. 
The upright officer who has been unjustly accused of 
oppression, will justify himself to his country, and cover 
his accuser with confusion. The vigilant guardian of 
the public rights will defend them before an enlightened 
tribunal, and expose the rapacity of the intruder. He who 
stands 'conscious and erect' will rejoice in the investi- 
gation of his innocence, he will discard every form, and 
proudly dare his adversary to a discussion of the merits ! 

" But the man I speak of does not do this, — the man 
I speak of did not dare to do this. He feared the learned 
integrity of a court, — he feared the honest independence 
of a jury. He intrenched himself in demurrers, sneaked 
behind a paltry plea to the jurisdiction, and now pub- 
lishes to t!ie world that he is precluded from this mode 
of justification, and that 'his wish had been for a full in- 
vestifjation of the merits at the bar.' 

"If such indeed were his wish, why was it not gratified? 
And by whom was he precluded from this favorite mode 
of defence X He does not indeed hazard the direct as- 
sertion that it was the unsolicited act of the court. His 
plea to the jurisdiction, his demurrers, not to mention an 
attempt to stifle the suit in its birth by a rule to find 
security for costs, — all these would too apparently falsify 
such an assertion. But though not stated in direct terms, 
is not the idea strongly conveyed? Was it not meant to 
be thus conveyed % When Mr. Jefferson says that the 
suit was dismissed on the question of jurisdiction, and 
that 'his wish had rather been for a full investigation 
of the merits at the bar,' what are we to conclude % 
What, I repeat, did he intend we should conclude, but 
that the decision of the court was unsolicited and con- 



150 LIFE OF EDWARD LIVINGSTON. 

trary to his wish? — and yet he, the gentleman who tells 
us this, had put in a plea to the jurisdiction, that is to 
say, prayed the court to dismiss the cause without an in- 
vestigation of the merits. He did more : fearing that 
this question might be decided against him, he put in a 
demurrer to the declaration; that is to say, he took an 
exception to its form, and prayed the court a second 
time, that, on this account, also, the cause might be dis- 
missed without an investigation of the merits. He did 
not stop here : a third battery was erected ; he pleaded 
another plea, that he did the act complained of as Presi- 
dent of the United States, and that therefore he ought 
not to be made liable in his individual capacity ; and a 
third time prayed to the court that the cause might be 
dismissed without an investigation of the merits. How 
Mr. Jefferson can reconcile these pleas with his wish to 
obtain a hearing on the merits, it is difficult to conceive. 
The coward who, on receiving a challenge, resorts to 
the interposition of a magistrate, might as well bluster 
about his desire fairly to face his adversary, and com- 
plain that he was precluded from giving him satisfaction. 
Yet this preclusion is stated by Mr. Jefferson as his rea- 
son for publishing the work which I am now about to 
examine. He had many advantages in the execution, 
and promised himself many more in the effects of this 
production. The subject had been fully and ably dis- 
cussed, but the publications on the adverse side were not 
in many hands. A considerable time had elapsed since 
the subject engaged the public attention. He had there- 
fore only to arrange the arguments in his favor, to sup- 
press or mutilate the conclusive answers which had been 
given to them, to collect all the quotations that had been 
used in the discussion, to give a new dress and the sanc- 
tion of his name to the calumnies circulated against his 



THE BATTURE CONTROVERSY. 151 

opponent, and he would make a book that should astonish 
by the {)olyglot learning of its quotations, amaze by the 
profundity of its borrowed research, and delight kindred 
minds by the poignant elegance of its satire. Add to 
these the advantages of using hearsay testimony, ex parte 
testimony, interested testimony, his own testimony ; of 
quoting authorities with an et ccetera for those parts 
which bear against his positions ; of omitting a word 
in tlie translation of a deed, and founding a long argu- 
ment on the false reading thus created; add the facility 
of gaining over to his party that large portion of man- 
kind who find it much more convenient to be convinced 
by the reputation of the author than to examine his work, 
and, above all, the hope that disappointment and despon- 
dence might silence his opponent, — and we shall have 
much better reasons for resorting to a publication of his 
' instructions to counsel ' than the alleged preclusion of 
a hearing at the bar. Whatever may have been the 
causes which produced this work, I rejoice exceedingly 
in the effect. My wish, also, had ' rather been for a full 
investigation of the merits at the bar ; ' but an appeal to 
the public is preferred, and I shall not decline it. Causes 
of less importance have sometimes excited an interest, 
not only in the countries where they originated, but 
abroad. The despotic King of Prussia could not op- 
press one of his subjects under the forms of law with- 
out exciting the indignation of Europe. Lawyers of the 
greatest eminence took cognizance of the affair ; and the 
force of public opinion, even in a military monarchy, 
obliged the prince to do justice to his vassal. Shall I 
then fear a less beneficial effect, when I can show that 
the free citizen of a free country has been deprived of 
his property by its first magistrate, without even the 
forms of law ^ I do not fear it. However dull may 



152 LIFE OF EDWARD LIVINGSTON. 

be the discussion, however laborious the research, it will 
not deter those who have an interest in inquiring whether 
their ' servant has done his duty,' or has been guilty of 
unconstitutional violence. I invite readers of this de- 
scription to follow me in the investigation I am about 
to make." 

The ex-President thought fit in his pamphlet to make 
and argue several points not relevant to the government's 
rights on the theory of which his action had been based, 
points which, therefore, could only be used with a view 
to exciting or keeping alive prejudices against his ad- 
versary. One of these positions was that the deeds from 
Bertrand Gravier were as comprehensive as the convey- 
ance to him ; so that if he had once owned the Batture, 
he had parted Avith it also. Another ground thus taken 
was, that if the property had descended from Bertrand 
Gravier, John did not take the whole, but only an in- 
terest in common with his brother and sister, who resided 
in France. Both these propositions were maintained at 
length and with pains by Mr. Jefferson. In support 
of the former, he incorporated in his argument a printed 
copy of one of the deeds from Bertrand Gravier, in the 
original Spanish, with an English translation of his own 
in an opposite column, and offered it as a fair specimen 
of all the conveyances by the same proprietor. The 
answer of Mr. Livingston showed that the late President 
had mistranslated the Spanish record by omitting a ma- 
terial word ; that still the particular conveyance was an 
exce|)tion to the others ; that some of them bounded the 
land they conveyed in front in terms by the levee, and 
that others referred to a map or plan exhibiting the same 
boundary; that the Batture -was expressly reserved in 
some, and in others expressly granted; and that in the 
latter cases Mr. Livingston had purchased from the 



THE BATTURE CONTROVERSY. I53 

grantees. These materials are used very effectively in 
the answer, which, after insisting that the only questions 
which it became Mr. Jefferson to discuss were. Did the 
land belong to the United States ■? Had the government 
a right to seize it 1 takes leave of this point in the fol- 
lowing way : — 

" I think I may, therefore, dismiss this first head of 
justification, and that I may, without flattering myself, 
believe that I have shown it both immaterial to the de- 
fence of the late President, and destitute of any founda- 
tion if material ; — I have shown that none of those 
front proprietors can be considered as owners of the al- 
luvion, because their deeds refer to the plan, which does 
not carry them to the river ; because very many of them 
refer not to the river, but to the levee, as their front ex- 
posure ; and because those who have an express convey- 
ance (except one) have disposed of their right, by sale, to 
the present claimant ; and in all events, if theirs, it ought, 
as their property, to have been as sacred as if mine." 

Mr. Jefferson's other suggestion, in favor of the French 
brother and sister of Gravier, is diligently refuted in 
several paragraphs, beginning in the following quiet and 
pungent strain : — 

" Having thus secured the rights of the front proprie- 
tors, this provident magistrate next takes the co-heirs of 
John Gravier under his paternal care. He has discovered 
that John Gravier (in fraud of his brothers and sisters, 
as he charitably insinuates) procured the property of his 
deceased bro.ther to be adjudged to him; that this Batture 
was not comprised in the adjudication; and that it there- 
fore r. mains the property of the heirs. And what then. 
Sir 1 Why, if this statement be true, John Gravier, as 
one of the three heirs, would have a right to convey his 
undivided third ; but surely it gives none to you to take 
20 



154* LIFE OF EDWARD LIVINGSTON. 

it away from his grantee or from the co-heirs in France. 
As, however, I know it must give great satisfaction to a 
mind so feelingly alive to the interests of absentees, to 
know that they are not dissatisfied with the transaction, 
I have the pleasure to inform you that they have ratified 
their brother's sale of the Batture, and that their con- 
cerns need no longer occupy your attention." 

After disposing of these topics, Mr. Livingston pro- 
ceeds to the consideration of a charge of collusion and 
champerty, elaborately preferred in the ex-President's 
pamphlet. I quote a part of his observations upon this 
head : — 

" We are now prepared to accompany Mr. Jefferson in 
his attempt to show, not that the property belongs to 
another, but that it does belong to the United States, and 
that he had a right forcibly to seize it. But we are not 
so soon to be gratified: more prejudices are to be excited 
against the injured proprietor ; another attempt is to be 
made to show that his title is defective, — as if chang- 
ing the party injured would lessen the offence. The title 
of Mr. Delabigarre, under which I claim a part of the 
lands, is said to be illegal, and, of course, I suppose, void. 
But if so, does it vest any title in the United States 1 Ad- 
mitting that he were guilty of champerty, no new title 
would thereby accrue to them. The parties might be 
punishable ; the deed might perhaps be declared void ; but 
the United States acquire no rights which they had not 
before. Why, then, is the subject introduced 1 Because 
in a bad cause it is easier to address the passions and 
prejudices of men, than to consult their reason or con- 
vince their understanding ; because it was supposed that 
the name of Mr. Jefferson would give new currency to 
the forgotten calumnies of New Orleans; and because 
some men can never forgive those whom they have in- 
jured. 



THE BATTURE CONTROVERSY. 155 

"The repetition of this charge might be excused, if it 
had not before been repeatedly resorted to, if Mr. Jef- 
ferson bad not seen the refutation, and if he had not 
the evidence of tlie fiilsity of the charge before him. 

"It is begun by an allegation, ' that, for six years after 
his purchase, John Gravier never manifested a symptom 
of ownership until Mr. Livingston's arrival from New 
York,' and that then Gravier received his inspirations 
that the beach (as he chooses to call it) was his ; that I 
tempted him to lend his name to the suit, but really pros- 
ecuted it for my own benefit. This charge is made with 
an air of levity, and a wretched attempt at wit, which 
could proceed from no one but a man hardened, by re- 
j)eated attacks on his own character, into a total insensi- 
bility for that of others. I first gave the idea to Gravier 
that the propertij ivas his! — yet, ten years before my 
arrival, his brother had, by four several recorded deeds, 
disposed of different parcels of it ; and Mr. Jefferson, 
who makes the charge, knew this fact. I first stirred 
lip a dormant claim! — yet I did not arrive until the 
7th of February ; and in December preceding, a square 
of five hundred feet was begun to be enclosed with a 
levee and ditch, and Mr. Jefferson had evidence of the 
fact. I first gave Gravier an idea of his claim! — and 
yet, previous to my purchase, he had agreed to sell it to 
Mr. Clark and Mr. Morgan ; and Mr. Jefferson had this 
evidence of the fact, that I had published it at the place 
where both those gentlemen live, and that it was never 
contradicted. What does he oppose to this mass of 
proof? Nothing but an assertion that he 'might safel}' 
presume that Gravier 's work was not begun while the 
French governor thought the country belonged to his 
master,' and most j)robal)ly not until after my arrival. 
Now he knew that I had arrived in February, 1804<, and 



l^Q LIFE OF EDWARD LIVINGSTON. 

he acknowledges that the enclosure was ordered to be 
destroyed on the 22d of that month ; so that Mr. Jef- 
ferson thinks it probable that, arriving in New Orleans 
on the 7th of February, I should immediately find out 
Gravier ; inspire him with so much confidence as that, 
by my persuasion, he should set up a most unfounded 
claim ; proceed to assert it by making, at a great expense, 
a ditch and embankment round a square of five hundred 
feet, that is to say, two thousand feet of levee ; and that 
this plan should be formed by a perfect stranger in the 
country, communicated to a man he had never seen be- 
fore, and that the whole should be executed in fourteen 
days from the time that he first touched the shore. This 
Mr. Jefferson thinks so probable as to counterbalance 
oaths, records, and the silent assent of those most conu- 
sant of the fact, and most interested in contradicting 
it ; and thus he uses the influence of his late exalted sta- 
tion, to perpetuate refuted calumnies, and stigmatize the 
character of a man whose fortune he had wantonly 
ruined." 

The course of the argumentation with respect to the 
merits of the case cannot be pursued here ; but a few 
additional passages may be quoted, as samples of the char- 
acteristic manner of Mr. Livingston's performance. In 
the following paragraphs he sets about the more direct 
part of the issue : — 

" Having repelled all the skirmishing attacks which 
have hitherto impeded our progress, we at length ap- 
proach the body of Mr. Jefferson's defence. It consists 
of the following points: — 

" I. That alluvions of navigable rivers, by the law of 
France, belong to the King ; and that those of the Mis- 
sissij)pi have been transferred, with the other sovereign 
rights, to the United States. 



THE BATTURE CONTROVERSY. 



157 



" II. That the right of alluvion accrues only to rural, 
not to urban possessions. 

'•III. That the j)roperty in question is not an alluvion, 
but ])art of the bed of the river, which belongs to the 
sovereign. 

"IV. That the use I made of the property was dan- 
gerous to the safety of the city of New Orleans, and an 
infringement on the public right to navigate the river ; 
that my works were a nuisance, and that the President 
had a right to abate it. 

" In discussing these points, I feel an embarrassment 
from the reflection that almost everything I shall say has 
been anticipated, either in my own publications or those 
of the learned counsellor and excellent friend * whose 
disinterested zeal has advocated niy cause ; and I cannot 
but admire the patient perseverance with which Mr. Jef- 
ferson consents to transcribe the oft-repeated authorities, 
to rally the broken sophisms, and once more array in his 
service the ten times refuted arguments which, at differ- 
ent periods, have been worn out in his defence. I will 
not, however, be outdone in the contest. I will revive the 
charge, as often as he shall choose to repeat the defence ; 
nor will I cease to expose his oppression to the public, 
until I have an opportunity of arraigning him before 
another tribunal." 

Mr. Jefferson in his pamphlet had expended much 
laborious research to show that by the French law allu- 
vion belonged to the Crown. In the course of this part 
of the discussion he found himself at variance with the 
published arguments of his professional associates, — men 
profoundly learned in the French law. In the answer, 
Mr. Livingston, after exhausting the history of the sub- 
ject, and showing that in the year I786 the King of 

* Mr. Peter S. Du Ponceau. 



]58 LIFE OF EDWARD LIVINGSTON. 

France had, by letters-patent, publicly disclaimed any 
title " to the alluvions, accretions, and deposits formed 
on the banks of navigable rivers," and acknowledged that 
they " belonged to the proprietors of the soil adjacent to 
the shores," concludes this head of his argument and ap- 
proaches another thus : — 

" After this formal recognition of the principles I con- 
tend for by the highest judicial and legislative authority in 
the kingdom ; after this solemn disavowal of tlie regal 
rights set up by my adversary ; after the publicity given 
to the decision at a time when, if I mistake not, Mr. Jef- 
ferson filled a high station in the capital of France, ^ — it is 
a little extraordinary to hear him assert so positively that, 
since the edict of 1793, no doubt could exist as to the 
laws of France on the subject of alluvion, and that those 
laws vested them in the King. The pertinacity with which 
this opinion is adhered to is the more extraordinary as 
the position was abandoned by two of his fellow-laborers 
out of three in the same cause, and by the two who, being 
educated in France, were, without any disparagement to 
the acknowledged merit and talents of the third, better 
qualified to determine a question of French law than any 
gentleman whose professional education was entirely 
American. The solicitude of our author to obtain the 
support of his two colleagues on this important point is 
truly ridiculous. In a labored note, he tries to coax 
Mr. Moreau out of his opinion, or to persuade the world 
that 'he is not decided' in pronouncing it; and his ex- 
tracts now show me why this memoire of Mr. Moreau 
was never suifered to meet my unhallowed eye. The. 
Secretary of State once (I believe inadvertently) men- 
tioned its existence; but on my expressing a desire to 
see it, changed the conversation, and I found there were 
reasons why it was deemed improper to communicate 
its contents. 



THE BATTURE CONTROVERSY. I59 

" The decided manner in which his other advocate, Mr. 
Thierry, had opposed his favorite doctrine, gave Mr. Jef- 
ferson no hope of soothing- or converting him ; and his 
arguments on this point most assuredly created no desire 
to enter the Hsts with so formidable an adversary. 

" The President of the United States, therefore, skulks 
out of the ranks to carry on his irregular attacks, and 
then rejoins the standard of his leader, with a compli- 
ment which he hopes will disarm his wrath and secure 
forgiveness for his desertion." 

The following is the mode in which Mr. JelTerson's 
distinction between rural and urban possessions, with 
respect to property in alluvial accretions, is answered: — 

" We next come to a position of which Mr. Jefferson 
seems peculiarly enamored, namely, ' that the right of allu- 
vion accrues only to rural^ not to iirhan possessions^ and^ 
therefore^ that had the Batturc been an alluvion^ and gov- 
erned by the Roman instead of the French law, the con- 
version of the plantation of Gravier into a suburb made 
it public property' These words, I should suppose, mean 
that although Gravier's plantation had been increased by 
alluvion to a very considerable extent, prior to his laying 
it out into a suburb, the very act of dividing it into lots 
vested in the public all that part which had been created 
by alluvion, — an assertion which he leaves unsupported 
by either argument or proof, and which modifies his posi- 
tion in a manner that renders it entirely inaj)plicable to 
the present case. This position is, ' that the Roman law 
gave alluvion only to the rural proprietor of the bank, 
urban possessions being considered as prwdia limitata' 
Now, admit this wild assertion to be true : does it follow 
that the alluvion created before the ground became a city 
belongs to the public'? On the contrary, does not Mr. 
Jefferson himself allow that it is an accessory, and that 



IQO LIFE OF EDWARD LIVINGSTON. 

the accessory must follow the prmcipal 1 If this be so, 
the question is at an end ; because the ground on which 
my house stood, and from which I was driven, was 
formed long before the existence of the suburb. 

"But the position is not only inapplicable, but unfound- 
ed. Let us examine how it is supported. The Institute, 
in defining this species of property, or rather this mode 
of acquiring it, says, ' What the river has added a^ro tuo 
by alluvion is thine;' the Digest uses the same expres- 
sion. Now a(/er in Latin, and dypos in Greek, mean a 
Jield. Land in the city is called area, a lot. Therefore 
you must show, says the conclusive and most learned rea- 
soner, that your alluvion accrued to a field, or you are 
not entitled to it ; because there are no fields in a city. 
I must answer this argument, or it will be supposed that 
this very learned page has silenced me ; and many an 
honest citizen who understands no Greek, but 'honors the 
sight ' as much as Boniface did ' the sound of it,' will 
suppose some unanswerable argument lies hid in the 
cramp characters that adorn it. Seriously, then, let me 
tell my learned adversary, first, that ager, in Latin, means 
not only a field, but the generic term land, and that, too, 
situate in a village, and, to take away all cavil, in a city^ 

Here, after quoting some plainly conclusive Latin au- 
thorities as to the meaning of the word agcr, and after 
following closely for some time several philological con- 
siderations urged in the paper of the ex-President, the 
answer proceeds : — 

" But I think in the reasoning to which Mr. Jefferson 
refers me, and which he makes his own, it is said that 
there are prcedia urhana and prwdia rustica, city estates 
and country estates, and that I show nothing unless I 
show that the right of alluvion accrues to the former by 
name ; but surely, when I show that it accrues generally 



THE BATTURE CONTROVERSY. IgJ 

to estates^ to lands., to the soil, — when I show that every 
term used to express an interest in real estate is em- 
ployed on the occasion, — I show enough to throw the 
burthen of any exception upon my adversary. I might 
say to him, I have shown that this right accrues to the 
ager, to ih^ fundus^ and the prcedium ; and I have shown, 
by the most approved definitions, that all these terms 
include lands in the city as well as in the country. If 
the law, however, does not apply to city property, do you 
show it. There is. Sir, I know, the prcedium iirhanum 
and thii prcedium rusticum ; but permit me, most learned 
civilian, to suggest to you that there is also the servus 
urhanus and the servus rusficus, and that you might as 
well tell me, when I cited any one of the thousand laws 
on the subject of slaves generally, that it did not apply 
to the town slave, because he was not particularly named; 
— nay, you might make the same exception to the coun- 
try slave, and thus show that what applied to all gener- 
ally, could not affect any in particular. And if it were 
not too presuming, I might add, you have made a slight 
mistake in supposing that prcedia urhcma were always 
situate in a city ; the name. Sir, has misled you. Before 
you write books on the civil law, and, above all, before 
you rely so much on your knowledge of it as to strip a 
citizen of his property, it would be well to study and 
digest its principles. Its maxims are, — '■In eo quod 
plus est semper inest et minus ;' ''In toto et pars con- 
tinetur;' ''Semper specialia generalihus insunV Ponder 
on these, learned Sir, and do not insist that a bequest of 
horses, generally, does not include those of the testator 
because they happen to be white horses, black horses, or 
even pied horses. 

"But if you will not be content, without a positive law, 
that the right of alluvion accrues to property in the city, 

•21 



IQ2 LIFE OF EDWARD LIVINGSTON. 

as well as the country, I believe, Sir, I must gratify you. 
If it had not been, however, for the bad habit you have 
fallen into, of being learned at the expense of others, of 
repeating quotations without looking at the text, you 
would have saved me this trouble, and yourself the mor- 
tification of repeating a triumphant challenge to produce 
an authority which you would then have seen was under 
my hand. 

" You have repeated, after those who went before you, 
the quotation, '^In agris limUatis jus alluvionis locum non 
habere constat; ' had you read the rest of the same law, 
you would have found the very authority you challenge 
me now to produce : ' Et Trehatius ait^ agrum qui hosti- 
hus devictis ea conditione concessum sit ut in civitatem 
veniret, habere alluvionem^ ' And Trehatius says, that 
land conquered from the enemy, and granted on condition 
that it shall be included in a city, is entitled to the right 
of alluvion.' 

" I repeat that I need not have produced this authority, 
and that nothing but my desire to oblige you. Sir, has 
induced me to submit it to your inspection ; but after 
this, I hope we shall not have a third repetition of the 
challenge. Such might be my address to my erudite 
adversary, if I were not restrained by respect for the 
conviction he expresses of the soundness of the principles 
I am forced thus reluctantly to attack. 

" The common law of England is next resorted to ; 
and I am again challenged to produce a decision under 
that law, where the right of alluvion to city 'property has 
been allowed. Having shown one under the law which 
governs the country in which the lands lie, I have, I 
think, done enough ; but I am resolved that none of the 
wretched shifts resorted to shall go unexposed, and that 
the President of the United States shall not have it to 



THE BATTURE CONTROVERSY. Jgg 

say, that his conduct would have been legal, had the land 
been in England, and he. King of that country. 

" First, then, I answer this appeal to the common, as 
I (lid that to the civil law, by giving the general rule, and 
calling on my adversary to show the exception, if it exist. 
Blackstone, speaking of this species of property, even in 
the strong case of alluvions of the sea, says, ' And as to 
lands gained from the sea, either by alluvion, by the wash- 
ing up of sand and earth, so as in time to make terra 
firma^ or by dereliction, etc., — in these cases, the law is 
held to be, that, if this gain be by little and little, by small 
and imperceptible degrees, it shall go to the owner of 
the land adjoining.' The same law, he says a little be- 
low, applies to a river. Now as land, in the English law, 
means every species of soil, whether urban or rural, as a 
lot of ground does not cease to be land although it be 
situate in a city, I should suppose this general expression 
would be sufficient to show that the King would have no 
right to the property in question, were it situate in Eng- 
land. But to this Mr. Jefferson gives a most conclusive 
answer : ' In towns, the whole bank and beach being ne- 
cessary for public use, the private right of alluvion would 
be inadmissible.' How does it happen, then, that in every 
city in the United States the shores and wharves are 
private property, except in the cases where the legislature 
or the King may have granted them to corporations, in 
which cases they possess and use them as individuals ? 
If they were necessary for public use, they could never 
be private property ; if the private right of alluvion were 
' inadmissible,' it would never exist. But necessary^ in 
Mr. Jefferson's vocabulary, means \i8eful^ and the j^'uhlic 
means those who administer its affairs. Whatever, there- 
fore, is useful to promote the popularity of the Presi- 
dent, is necessary to the public; and it is in this sense 



lQ4f LIFE OF EDWARD LIVINGSTON. 

only that his allegation can be reconciled to truth. The 
question of the right of alluvion to town-lots has arisen 
and been decided in the United States. The lands were 
situated in Newburyport, and the case is reported in 
Tyng-'s Massachusetts Reports, vol. iii. p. 353, Adams 
versus Frothingham. It was decided according to the 
common law of England, not by virtue of any State reg- 
ulation ; and the judgment affirmed the right of alluvion 
to the proprietor of a town-lot. 

" But the whole body of American judges are pro- 
scribed ; their decisions are no rule for Mr. Jefferson. 
' Special circumstances,' he says, ' have prevented atten- 
tion in America, either to the law or the breach of it.' 
What those circumstances are which would make learned 
and upright judges neglect the law, or enlightened magis- 
trates disregard the interests of the public, he has not 
deigned to explain. But, be it so. American decisions 
shall pass for nothing ; there are no bounds to my com- 
plaisance for my adversary ; everything shall be yielded 
to him ; titles in Louisiana shall be decided by the laws 
of England, not as those laws are understood in the 
United States, as they are expounded by the ignorant 
men who preside in their courts, but as they flow from 
the fountain-head in good old England itself, and not 
even there as they are given to us by such inaccurate writ- 
ers as Blackstone or Coke, who deal in general princi- 
ples, but we will look for decisions, and those relating 
not only to land, but to land in a citf/ ; nay, more, to 
land in a port / and, to bring the case still nearer home, 
to a beach which is covered, not once every six months, 
but twice every day, with the water, not of a river, but 
of the sea, and on which ships, not Kentucky boats, ride 
at anchor. Thus far I shall be enabled to go, but I can- 
didly confess I can get no farther; and if it should be 



THE BATTURE CONTROVERSY. 165 

objected to me that my property is chiefly loam and vege- 
table soil, and that, in the case I cite, the soil was sea- 
sand, that my alluvion was produced by fresh water, 
and the English one by salt, or any other distinction 
equally important should be raised, I confess that I must 
give up the cause in despair, and avow myself vanquished 
by the superior resources of my opponent. Let us, how- 
ever, do what we can," etc. 

Some animadversions of Mr. Jefferson upon the sup- 
posed dangers of Mr. Livingston's enterprise are thus 
met by the latter : — 

" This leads to the fourth head of defence, which 
supposes the property mine, but alleges an use of it in- 
consistent with the laws of the Territory. The docu- 
ments to which I have before referred show how ill- 
founded is this charge. But suppose it true, what jus- 
tification does it form for Mr. Jefferson's interference ? 

" He has shown that if I were guilty of these attempts 
to drown and poison the city, there were laws not only 
to punish, but restrain me. The ancient and modern pro- 
visions he has cited authorize the judge, on the com- 
plaint of any individual interested, to issue his injunc- 
tion against the erection of the work. 

" He has not only cited the law, but shown that pro- 
ceedings were had under it ; he has told the public that 
my works were presented by a grand jury as a nuisance. 
Why was not that presentment followed up and tried ^ 
I could then before a jury of my country have shown 
the Hilsity of all these charges. If they were true, a 
verdict, which could have been had in ten days, would 
have put a stop to my ' aggressions ' as effectually as the 
mandate of the President, and I believe every one will 
allow, \\ith rather a greater attention to the forms of 
law. That a President of the United States is required 



IQQ LIFE OF EDWARD LIVINGSTON. 

or even authorized to watch over the pohce of the rivers 
or the cities in the Territories ; tlmt he is to abate the 
nuisances in the suburbs of New Orleans, and determine 
the proper height and extent of the levees in the Mis- 
sissippi ; that he is to guard against the accumulation 
of the ' putrefying mass with which I was to raise up 
the foundation of my embankment,' — appears to me rather 
derogatory to his station and incompatible with his other 
duties. I had thought that they fell within the province 
of a high constable or a scavenger ; that the first magis- 
trate of our nation had certain duties assigned to him 
by the Constitution, which he was to perform without 
interfering- with the internal reg^ulations of Territories and 
States ; and that when he was authorized to ask the opin- 
ion of the great officers of the government, it was not 
intended that he should degrade them by deliberating 
on the propriety of filling up a mud-puddle or pulling 
down a dike in New Orleans. 

'"iV^c Deus infersit nisi digniis vindice nodus^ 'Do not 
let Jupiter appear until his thunders are necessary ' is a 
maxim, true as well in the common prose transactions 
of real life, as in the fictions of poetry. If my works 
were a nuisance, a court of quarter-sessions, with its 
sheriff", its constables, and parish jury, was a much more 
appropriate, machinery, than the President of the United 
States, assembling the council of the nation, drawing out 
its military force, and launching his thundering mandate 
at my unprotected head. 

" There is a real or aff*ected ignorance of the first prin- 
ciples of our government which runs through all this 
division of Mr. Jefferson's argument, that is degrading 
to the author in the first hypothesis, insulting to his 
readers in the second. The bed of the river and its 
shores belong, says his argument, to the public. The 



THE BATTURE CONTROVERSY. 



167 



sovereign is the guardian of this pubhc right; and though 
the soil of the bank may belong to an individual, it is 
the duty of the sovereign to take care that this right of 
private property yield to the public use. To this point 
he has cited Domat, p. 60. But in our government 
who is the sovereig-n ] The executive head of the fed- 
eration ? or the local government, the State or Territorial 
sovereignty. No man who understands the first rudi- 
ments of our Constitution can hesitate on these questions. 
Again, of the local government, vi'hich branch 1 Every 
infraction of a public right is a public offence, and all 
these are to be punished by the intervention of the Ju- 
diciary, a branch wholly distinct in our government from 
the Executive, but which Mr. Jefferson has confounded 
with it in his principle, and has degraded by his prac- 
tice. 

" The Territorial government, for all the purposes of 
domestic rule, is as distinct from and as independent of 
the General Government, as is that of the States. By 
the Ordinance of 1787? vvhich at the period of the trans- 
action formed the Constitution of the Territory of Orleans, 
there was a governor with executive power, a legislative 
council and house of representatives, with ' authority 
to make laws in all cases for the good government of 
the district, not repugnant to the Ordinance,' or Consti- 
tution, and a judiciary regularly organized. In short, 
a local government complete in all its parts, excluding 
as nmch any interference of the Federal Government, as 
those established in the States. The care, then, of all 
these public rights in the Territory of Orleans belonged 
exclusively to the proper branch of the local government, 
and the interference of the President of the United 
States was as unconstitutional under that pretence as it 
would have been in New York or Massachusetts ; and 



168 LIFE OF EDWARD LIVINGSTON. 

he mifi-ht as well order the Marshal to call out his 
2^0886 to destroy the weirs and floating nets in Hudson's 
River, or to cut down the wharves that project into its 
channel, — he might as well, I repeat, order the demoli- 
tion of Long Wharf, and direct the garrison of the Castle 
to hold themselves in readiness for another Boston Mas- 
sacre, in case of resistance. He would he quite as jus- 
tifiable in doing this as in doing what he has done; and 
he might use the same arguments with as much force 
in the one case as in the other. 

" That the right of interference resided in the Territo- 
rial, not in the General Government, is in effect acknowl- 
edged by our author himself, who tells us that ' surely 
it is the territorial legislature which not only has the 
poiver but is under the urgent duty of providing regu- 
lations for the government of this river and its inhab- 
itants,' etc. In the same page he tells us that ' the 
governor and cabildo (municipal council) seem to have 
held this pretorian power in Louisiana, as tvell as that 
of demolishing lohat was unlatofidhj erected;'' and that 
' the act of the legislature, without taking the power from 
the governor and city council, giv^es a concurrent power 
to the parish judge and jury,' etc. Here we have an 
express acknowledgment, nay, more, a strong desire to 
establish a right in the Territorial legislature to make 
laws on the subject in dispute, and in the Territorial ex- 
ecutive to carry them into execution, — not only to pre- 
vent the erection of any nuisance, but to demolish it if 
erected. If, then, this right both to legislate and execute 
was vested in the local government, what excuse has the 
President of the United States for his interference % In 
what part of the Constitution does he find this concur- 
rent right \ What confused ideas, then, I repeat, must 
that man have of government who believes in this jus- 



THE BATTURE CONTROVERSY. Jgg 

tification ! What contemptuous ideas of the people to 
whom it is addressed must he entertain, who, knowing 
its fallacy, thinks he can impose it on their understand- 
ings ! 

'•But supposing my works a nuisance, and the Presi- 
dent of the United States to have the power to abate 
it, has he done so ? Is that the act of which I com- 
plain ? Neither the one nor the other ; — his order is 
not an order to demolish my works, to fill up my canal, 
to pull down my house, but ' to remove me from the pos- 
session of the land^ — and this was accordingly done ; 
the canal which was to poison the city by its pestilential 
vapors was suffered to remain, and is resorted to at this 
day, although nearly choked up for want of cleaning and 
repair, as a more commodious and safe harbor for boats 
than any other near the city. The levee that projected 
into the river, and was to ' sweep away the town and 
country in undistinguished ruin,' was not demolished by 
this vigilant abater of nuisances ; it was left to the opera- 
tion of time to effect. The house which impeded the 
navigation of the river and interfered with the public 
right to its banks, was transferred to the possession of 
the city of New Orleans, and for several years was oc- 
cupied as their guard-house. So that, if the facts alleged 
in Mr. Jefferson's justification be true, and it was his 
duty to abate the nuisance, he has totally neglected it ; 
he has suffered the nuisance to remain, but has dispos- 
sessed the owner of the land on which it was erected, — 
a new mode of procedure, and somewhat inconsistent 
with that eager desire to destroy these dangerous works, 
with that active zeal which could brook no delay to con- 
sult the forms of law. The truth is, that this idea of 
the abatement of a nuisance is a complete afterthought, 
never alluded to in the act or in any of the early stages 
22 



lyO LIFE OF EDWARD LIVINGSTON. 

of justification, suggested now by a faint hope to elude 
fair inquiry, and made of such stuff as are the arguments 
of a Newgate soHcitor in defence of a felon caught in 
the meinour. To hide the threadbare weakness of this 
argument, it is glossed over with a mock-heroic decla- 
mation, in which pestilence and fever, death, destruction, 
ruin, and inundation, frighten the reader in every line, 
and in which he has reproached me with being afraid 
of submitting my cause to a jury. Mr. Jefferson re- 
proaches me with this ! — he whose constant care has 
been by demurrers, by pleas to the jurisdiction, by every 
device that chicane could invent, to avoid this species 
of investigation ; he whose steady phalanx of friends in 
Congress defeated every attempt to submit the cause to 
any species of trial ! He utters this reproach to me ! 
who for five years have been constantly engaged in the 
painful, unavailing task of solicitation for this or any 
other trial. Such an insulting disregard to propriety 
and truth forces me from the moderation with which I 
wished, injured as I have been, to conduct the contro- 
versy ; and the close of the passage now under review 
is calculated to inspire sentiments not only of indignation, 
but of horror. 

" My life had been more than once threatened for ex- 
ercising my legal rights. Emboldened by the idea of 
executive protection, excesses were committed in my case 
which the love of order natural to the people of Louisi- 
ana had in every other instance avoided. The good sense 
of the people had got the better of this temporary 
frenzy ; the necessity of submitting to the laws was 
perceived and acknowledged. Mr. Jefferson's friends 
must have informed him that these ideas began to pre- 
vail, and that if by a decree of the court, or in any other 
legal manner, I should recover my possession, there were 



THE BATTURE CONTROVERSY. 



171 



now no hopes that I should be deprived of it by a mob. 
This was a prospect too mortifying to be endured ; 
the people must be excited, — the spirit of I8O7 must 
be revived, and though the danger never existed, though 
if it existed it was long past, it must be painted in glow- 
ing colors, the vengeance of popular fury must be 
directed at my head ; an expression in one of my letters 
which, it was thought, would render me odious to the 
people, must be culled with malignant care ; their con- 
duct in o})posing the laws must be spoken of with com- 
placency, while mine in daring to complain is held up 
to the severest animadversions ; and when by these arts 
a proper spirit is supposed to have been excited, they 
must be plainly told, that though their laws will not allow 
them to burn me alive, it is a punishment mild enough 
for my oftence ! ! 

" ' What was to be done,' says Mr. Jeiferson, ' with 
such an a^ffressor ? Shall we answer in the words of 
the imperial edict ? Let him be consigned tvith flames 
in that spot in tvhich he violated the reverence of an- 
tiquity and the safety of the empire ; let his accessaries 
and accomplices he cut off,' etc. ' Our horror,' he adds, 
' is not the less because our laws are more lenient.' « I 
ought perhaps only to laugh at the folly of this rhapsody, 
and remind the author that the flames were prepared by 
the Roman law for the destroyers of the dikes of the 
Nile, not for the one who erected them, — I ought to 
ask him good-naturedly to look at the title of his own 
law, and determine which of us deserved the stake. But 
I confess that the mirth naturally excited by the ab- 
surdity is somewhat repressed by horror at the wicked- 
ness of this attempt. 

" On these facts and on this law, the late President 
says, ' We were called, and repeatedly and urgently called, 



172 



LIFE OF EDWARD LIVINGSTON. 



to decide.' As I do not suppose a republican magistrate 
could assume the ridiculous expression of royalty, by 
speaking in the plural number, I must suppose that he 
has fallen into it by reflecting on the various capacities 
in which he was thus urgently called on to act. As leg- 
islator^ he was to make a new law to fit the circum- 
stances of the case ; as judge, he was to apply it to 
those facts, which, as a juror, he was to ascertain, and 
to pronounce that sentence, which, as executive officer, he 
was himself to carry into effect ; as President, he was 
to reclaim the lands of the United States ; as Command- 
er-in-Chief of the armies, a sufficient military force was 
to be prepared to overawe opposition ; as Magor of the 
city of New Orleans, he was to enforce its rights against 
the decrees of the court ; as liigli constable, he was to 
abate nuisances, and as street commissioner to remove 
the putrefying mass that threatened the health of the city. 
We ought not to be astonished that an officer who thought 
himself obliged to act in all these capacities should speak 
as if he were more than one, nor that, having in this 
instance invested himself with all the characteristics of 
despotism, he should have assumed its style." 

The following is part of Mr. Livingston's review of 
Mr. Jefferson's account of the cabinet deliberations and 
decision to act in the matter : — 

" The task, then, undertaken by the President and his 
counsel was a judicial one in the strictest sense of the 
word, and they applied themselves to it with some de- 
gree of form. A preliminary question to be decided by 
a court inquiring into a case is, By what rule are we to 
decide \ What law is to govern the case "? And we 
accordingly find that this was the first object of attention 
with our new tribunal. ' The first question occurring,' 
says Mr. Jel]['erson, 'was. What system of law was to be 



THE BATTURE CONTROVERSY. 



173 



applied to them '? ' They adopt the laws of France, and 
then they, or Mr. J., (for it does not clearly from his 
style appear which,) reason through forty pages upon the 
law and the fact, and having clearly settled both in their 
own minds, they are convinced of the guilt of the ac- 
cused, and we have the important inquiry in the criminal 
cause : ' What was to be done with such an aggressor 1 ' 
Having, with a humanity for which I can never be too 
grateful, determined that though he richly deserved it 
they would not burn him alive, they proceed to declare 
what sentence shall be passed on the civil side, or, to give 
Mr. Jefferson's words, ' The question before us was, What 
is to be done ? What remedy can we apply authorized 
by the laws, and prompt enough to arrest the mischief ^ ' 
The points of law and of fact determined by this tribu- 
nal are then resumed and stated with precision, and we at 
length come to the decree, which is thus rendered : ' On 
duly weighing the information before us, which, though 
not so ample as has since been received, was abundantly 
sufficient to satisfy us of the facts, and has been confirmed 
by all subsequent testimony, we were all unanimously 
of o})inion that we were authorized and in duty hound^ 
without delay, to arrest the aggressions of Mr. Livingston 
on the public rights and on the peace and safety of New 
Orleans, and that orders should be immediately despatched 
for that purpose, restrained to intruders since the passage 
of the act of March 3d.' * 

" Here is the sentence, and I am mistaken if a more 
formal one ever received the sanction of a court. 

* The act of Congress here re- public lands from encroachments by 

ferred to, and which Mr. Jefferson the class since called " squatters," 

relied upon as a distinct ground of and its passage was several months 

justification for his measures against before the question of title to the 

Mr. Livingston, was a general stat- Batture was presented to the gov- 

ute (Chapter XLVI. of the laws of ernment. 
the session) designed to protect the 



17^ 



LIFE OF EDWARD LIVINGSTON. 



" First, we are told that they duly weighed the infor- 
mation hefore them^ and though, to be sure, it was not 
so ample as has since been received, yet it was abun- 
dantly sufficient to satisfy them of the facts. Here, then, 
is a decision in form of the facts in the case. 

" But, lest any doubt should be entertained of the juris- 
diction of the court, an elegant pleonasm is introduced to 
mark this feature strongly, and show that no doubts were 
entertained, at least by the judges, on this subject. 'We 
were all unanimously,^ says the classic Jefferson, 'of opin- 
ion that we were authorized and in duty bound to arrest 
the progress of Mr. Livingston.' Here the offender is 
pointed out, and his double aggression distinctly marked: 
he is found guilty of offences against the public rights and 
the peace and safety of the city of Netv Orleans. This is 
the conviction ; in the sentence, I confess, there is more 
obscurity than I should have expected from the pen of 
the enlightened chief of the tribunal. ' Orders,' it is said, 
' should be immediately despatched for that purpose,' (name- 
ly, to arrest the aggressions of which I had been found 
guilty). What those orders were, in what manner the 
evil was to be arrested, does not appear by the record; 
they had confidence in the President, perhaps, and left 
this to his discretion ; but the obscurity is cleared up 
by the execution which immediately followed the sen- 
tence. It consisted of an order from the Secretary of 
State to the Marshal, to remove all persons from the 
Batture who had taken possession since the Sd March, 
I8O7. The civil power is to be first employed, and in 
case that should prove insufficient, the Secretary at War, 
another member of the court, orders the military force to 
carry it into effect. The sentence was executed ; and the 
unfortunate offender, thus legally, fairly, and constitution- 
ally condemned, was reduced from aflfluence to poverty, 



THE BATTURE CONTROVERSY. 



175 



from the prospect of independence to a life of solicitation 
and labor." 

In point of dignity and temper, the private citizen, in 
discussing what he regarded as an enormous personal 
injury to himself, maintained throughout his argument 
a clear advantage over the late chief magistrate, giving 
a voluntary account of his management of a high gov- 
ernmental trust. The latter, in his paper, frequently 
stepped aside to indulge in such irrelevant assertions 
as that Mr. Livingston was " an eagle-eyed adversary," 
a "greedy individual," governed by "the delusions of 
self-interest, " one who " could not suddenly forget the 
flesh-pots of Egypt, even in the new land of Canaan;" 
that he was engaged in " an atrocious enterprise," and 
was leniently dealt with if not burnt to death ; that his 
claim was " too frivolous to occupy the attention of Con- 
gress," — and the like. His adversary, on the contrary, 
through all the sarcasm and severity of his answer pre- 
served a steady pertinence to the subject of his complaint, 
and adhered to the forms of politeness in dealing his 
heaviest blows. With regard to the new land of Canaan, 
he declared that he knew as little of its flesh-pots as the 
late President seemed to do of its laws. " But," he 
added, " I think that when searching the Scriptures for 
unmeaning allusions, Mr. Jefferson might have discov- 
ered some precept to arrest him in the unholy career of 
first oppressing a fellow-citizen whom he was bound to 
protect, and then adding mockery to his other outrages." 
While his claim was before Congress, he had, on the eve 
of an adjournment, as a last means of securing attention, 
addressed a circular letter to the members of that body, 
in these words : — 

" Sir : The peculiarity of my situation will justify me 



176 



LIFE OF EDWARD LIVINGSTON. 



in renewing to you, individually, the appeal which has 
repeatedly been made to the honorable body of which 
you are a member. Without entering into any other 
circumstances of my case, thus much is without dispute : 
that without trial or any judicial process, I have, by 
military force, been driven from the possession of a real 
estate of which I was the lona fide purchaser, for a val- 
uable consideration, from a person in possession, and 
under a title recognized to be good by the sentence 
of a competent tribunal, judging in the last resort ; 
that I am an American citizen, and have never done 
anything to forfeit the rights to which that quality en- 
titles me ; and that the United States being in possession, 
I have no remedy at law. 

" Whether the law of 1807 authorizes the proceedings 
against me or not, or whatever were the motives of those 
proceedings, my case is equally one of primary public 
concern, and is that of every individual in the commu- 
nity, for no one has any legal security which I had not. 
If the law authorizes such proceedings, it is unconsti- 
tutional ; if it do not authorize them, the misconstruc- 
tion ought to be remedied. I might, therefore. Sir, with- 
out presumption, claim that interference, as a matter of 
the highest public duty, which, in my present situation, 
I am content to solicit as a private favor. Deprived of 
a fortune that would place me in a state of independence, 
I am, by the act of the government, reduced to poverty, 
and exposed to the pursuits of creditors, whose patience 
will, I fear, be exhausted by further delay ; twice obliged 
to leave my profession and place of abode, my means 
are exhausted, and my business lost. Under these cir- 
cumstances, Sir, I am persuaded that you will not suffer 
the trifling inconvenience of a few hours' delay to balance 
the utter ruin of a fellow-citizen, who cannot trace his 



THE BATTURE CONTROVERSY. 



177 



misfortune to any imprudence of his own, and who only 
asks that fair trial which the Constitution you have sworn 
to defend secures indiscriminately to all. 

"Edw. Livingston. 

" 23d June, 1809." 

This manly and pathetic appeal the ex-President, in his 
pamphlet, condescended to make the topic of a jest, which 
lacked the poor excuse of heing pointed. " A most un- 
grateful complaint," it runs ; " for had he not been re- 
moved, he must at the time of writing this letter have 
been, as his estate was, some ten or twelve feet under 
water, the river then being at its greatest height." To 
this Mr. Livingston responded by setting out the letter 
in full, and appending only the following commen- 
tary: — 

" If there be any man who can join Mr. Jefferson's 
merriment at the terms of this letter, I do not envy that 
man's enjoyments, and would much rather be the suf- 
ferer under the wrongs there detailed, than the one, 
however high his office, who could first inflict and then 
deride them." 

Every argument and suggestion of his antagonist re- 
ceives distinct notice in the answer of Mr. Livingston. 
Whatever fact or inference he cannot claim to be in his 
own favor, he admits with a dry and robust candor. 
He ap})roaches a conclusion in the following sen- 
tences : — 

" The task I had imposed on myself is now finished, 
and I commit, with satisfaction, my cause to the public. 
It is not one of mere interest, either to me or to my ad- 
versary: as he has managed it, the question involves 
considerations of higher moment to us both : I am an 
intruder on the public, or he an invader of private rights. 

23 



1*78 LIFE OF EDWARD LIVINGSTON. 

The only true inquiries were, Was the land in question 
the property of the United States ? Had the President 
a right to seize it if it were ■? A dignified defence would 
have been confined to the support of an affirmative answer 
to these propositions. Innocence would have rejected' 
the doubtful advantage to be derived from even a just at- 
tack ; integrity and honor would have disdained the aid 
of unjust accusations, however plausible ; magnanimity 
would have scorned the efiect of an appeal to popular 
prejudice ; — but in this case we look in vain for these 
results." 

Here follows a swift and close recapitulation of the 
main points of the answer, which ends thus : — 

" I now take my leave of Mr. Jefferson. In my an- 
swer, I have confined myself to his book. Notwithstand- 
ing the strong temptations which assailed me almost in 
every page, I have strictly kept within the boundaries 
of a just, (and, I think, considering the wanton attack,) 
a mild defence. My future conduct will depend much 
on that of my adversary. I shall continue to reply to 
every argument that may be addressed to the public on 
this subject. Knowing that my cause is good, I do not 
despair, even with humble pretensions, to make its jus- 
tice appear. For this purpose, I have always courted 
investigation ; I should have preferred it in a court of 
justice, but do not decline it before the public. 

" Though some may condemn me only on hearing the 
name of my opponent, there are many, very many, in 
the nation who have independence enough to judge for 
themselves, and the ability to decide with correctness; 
to such I submit the merits of a controversy which has 
been rendered interesting as well from the constitutional 
as the legal questions it involves, and on which Mr. Jeffer- 
son has, by his management of it, staked his legal, his po- 



THE BATTURE CONTROVERSY. 1^0 

litical, and almost his moral reputation. That he should 
not have understood the nature of my title and the dif- 
ferent foreign codes on which it depends, is no reproach; 
that he should have acted at all vv'ithout this knowl- 
edge must surprise, that he should have acted forcibly, 
must astonish us ; but that he should persevere in the 
same pretence of understanding the law of France better 
than gentlemen bred to it from their childhood, and who, 
engaged on the same side of the controversy with him- 
self, have abandoned the ground he has taken, — that he 
should obstinately justify an invasion of private property, 
in a manner that puts it in the power of a President 
with impunity to commit acts of oppression at which 
a King would tremble, — that he should do all this, and 
still talk of conscious rectitude, must amaze all those 
who look only to the reputation he has enjoyed, and who 
do not consider the inconsistency of human nature, and 
the deplorable effects of an inordinate passion for popu- 
larity." 

To show the habit of Livingston's mind in searching 
for illustrations pertinent to the subjects which occupied 
his attention, I may relate this anecdote. His answer to 
Mr. Jefferson having been finished and retouched with 
care, during one of his visits to the east, the manuscript 
was given to the printer on the eve of his departure for 
home. His journey was by stage-coach through Penn- 
sylvania to Pittsburg, and thence by the rivers. The 
task of revising the press he left to the kindness of a 
friend, — Mr. Du Ponceau, of Philadelphia. To the latter 
he wrote, on reaching Pittsburg : — 

" How will this note do to that part of the work which 
refutes the idea of the land covered by the inundation 
being the bed of the river 1 It escaped me when I was 
with you. 



180 LIFE OF EDWARD LIVINGSTON. 

" ' Although I do not think the poets the very best 
authority in a juridical controversy, nor am I disposed to 
imitate Mr. Jelierson, when he quotes lines out of >S'^. 
Evremont to prove the legal signification of a French 
term, yet Virgil has, in one line, so distinctly marked 
the difference between the bed of the river and the fields 
which it inundates, that I cannot resist the temptation of 
quoting the passage : — 

" aut pingui flumine Nilus, 
Q.uum refluit campis, et jam se condidit al'veo." 

vEneid, 1. 9, V. 31.' " 

The suggestion was attended to by Mr. Du Ponceau, 
and the Virgilian citation appeared in the work, along 
with the other authorities which the author had brought 
together in support of his various positions. 

The passages above transcribed are but so many bricks 
which fail to convey any adequate notion of the archi- 
tecture of the work from which they are taken. That, 
to be appreciated, must be read with the paper which 
called it forth. Of it the learned editor of the periodical 
in which both productions appeared together declared, 
at the time, that " to us it appears to be one of the most 
masterly performances that ever came from the pen of a 
lawyer or scholar in any country." And this strong 
praise the learned reader of the present day will not think 
excessive or injudicious. 

At the period when these arguments were published — 
fifty years ago — it was not easy, as it now is, to draw 
a general popular attention to such questions as they dis- 
cuss, and the public to which they were really addressed 
was a more select one — composed more exclusively of 
professional and learned persons — than the public to 
which similar appeals would at present be made. Thus 
the conduct of Jefferson on this occasion escaped in a 



THE BATTURE CONTROVERSY. Jgl 

g-ood degree that universal notice and exposure which, 
in our day, it would have been sure to receive. But the 
recognition which was accorded to Livingston by some 
of the best and first men of his time, both as to his 
rights and his manner of asserting them, must have 
formed at least some compensation for the wrong he had 
suffered. The following- letter he received from his 
former fellow-student, then Chief-Justice of the State 
of New York, soon afterwards its Chancellor, and finally 
the Blackstone of American law : — 

^* Albany, May 13, 1814. 

" Dear Sir : Your favor of the 9th ult. was just now 
received, and I am sensible of the honor done me by the 
value which you are pleased to attach to my legal 
opinions. On all questions depending on the civil law my 
researches are very imperfect, and I know that you are 
infinitely my superior ; and if I had any doubt of your 
title to the batture after reading Jefferson's pamphlet, 
your reply had completely removed it. I purchased the 
reply as soon as I heard it was to be procured, and be- 
fore the one you was so kind as to intend for me came 
to hand, and a more conclusive argument I never read. 
Permit me to assure you that I have sympathized with you 
throughout the whole of the controversy, as I took a very 
early impression that you was cruelly and shamefully per- 
secuted, and that, too, by the executive authority of the 
United States. I am more and more confirmed in this 
opinion, and Mr. Jefferson has richly merited all the 
reproach and indignation which your pamphlet conveys. 
I never doubted in the least (it would have been impos- 
sible) that his interference summarily under the act of 
Congress was unauthorized ; but as I read but once his 
book on the title, and did not examine his authorities, but 



IS2 LIFE OF EDWARD LIVINGSTON. 

assumed them to have been fairly cited, I was left in 
perplexity and doubt, and had not leisure to sit down to 
a reexamination of the subject. When your reply came, 
I read it eagerly, and studied it thoroughly, with a re- 
examination of Jefferson as I went along; and I should 
now be as willing to subscribe my name to the validity of 
your title and to the atrocious injustice you have received, 
as to any opinion contained in Johnson's Reports. This 
last pamphlet is the ablest work with which you have 
hitherto obliged the public, and it gives you new and 
increasing claims to their consideration. 

" I always recollect, with pleasure and tenderness, the 
friendship of former days, and I cannot omit any oppor- 
tunity to assure you of my constant esteem and regard. 
" I am, dear Sir, 

" Yours, sincerely, 

" James Kent. 

" Edward Livingston, Esq." 

The student of our political history cannot learn from 
even the most voluminous of Mr. Jeflfisrson's biographers 
that he ever committed any act of such practical and 
thorough despotism as we here see that he did, and it 
may be difficult for ardent youthful admirers of the il- 
lustrious teacher of democracy to believe the fact. Yet 
no fact can be more certain than that the complaint 
of Mr. Livingston was, in substance, altogether well 
founded and true. It would require but few such acts 
to make even the name of Jefferson stand in history 
for a character such as Livingston was tempted, in an 
eloquent passage of the work just considered, to de- 
pict him, " the magistrate of a free people, playing the 
Tartuffe of liberty, — adoring it in theory, but in prac- 
tice violating its most sacred principles." The truth is, 



THE BATTURE CONTROVERSY. 183 

that Mr. Jefferson, throughout his tract, — now published 
with his works, — betrays a sensitive desire to convince 
himself that he had not, in this instance, done scanda- 
lous violence to the great principles of which he is the 
popular exemplar ; and if he had succeeded in this en- 
deavor, he would not, a few years later, have entertained 
nor testified the exalted respect for his adversary, proofs 
of which will be recorded further on. 



CHAPTER IX. 

DISAPPOINTMENT AND AFFLICTION. 

Temper of Mr. Livingston — Condition of Affairs, caused by the De- 
votion of his Time to the Batture Enterprise — Anecdotes — A Scrap of 
Translation — Anxiety to end the Separation from his Children — Letters 
of Julia — Her Death — Letters to Lewis — The latter joins his Father. 

MR. LIVINGSTON'S temper proved itself perfect, 
throughout the controversy with Jefferson. That 
he felt, as keenly as any man could feel, the vexation, 
disappointment, and sense of injury involved in the treat- 
ment he received, is made clear by his part in the public 
discussion of the case. But his private demeanor was 
not disturbed by the struggle for a single moment. There 
was no gall in his heart, and no wormwood in his speech. 
In his family and among his friends, not a bitter word 
towards his principal adversary, or towards the more 
contemptible enemies who assisted in the work of thwart- 
ing him on this occasion, ever escaped his lips. 

If he could have foreseen the tedious course of the 
litigation, and have chosen to abandon this property al- 
together and rely upon his other more regular resources, 
his pecuniary independence might, with good manage- 
ment, have been speedily accomplished. But this specu- 
lation promised at first such brilliant results, that the 
unexpected opposition he met gradually stimulated his 
exertions in defence of his rights, till his best energies 
had been devoted to the case so long, that, when the war 
broke out between the United States and England, in 
18 IS, the question was yet in the courts, and his prin- 



DISAPPOINTMENT AND AFFLICTION. 185 

cipal debt was still unpaid. His resources for paying it 
were paralyzed by the war. Money became scarce ; his 
property could not then be disposed of, and even ordinary 
professional business was much interrupted. No course 
was left to him but to continue, indefinitely, his labor and 
his patience. 

All his life, Livingston was accustomed to long, daily 
walks, usually solitary. At this period, the close of 
the day was the hour he habitually set forth, and the 
levee was the accustomed place. One evening he was 
stopped by a man, in a rustic dress, who asked him if 
he was Mr. Livingston. 

" Yes." 

" I thought so. I have come to ask you to lend me 
a doubloon." 

" Lend you ] " 

" Yes, it will be returned." 

" But, why that precise sum ] " 

" Less would not serve my purpose, and more I don't 
need." 

Having the money in his pocket, Mr. Livingston 
handed the coin to the stranger without further ado. The 
latter, as cool in his thanks as he had been in his request, 
went his way, saying, — 

" Good night. If I live you will hear from me again." 

The above incident had long been forgotten, when one 
morning, two years afterwards, whilst Mr. Livingston 
was sitting at breakfast with his family, a stranger was 
announced, who walked straight up to the table, and plac- 
ing upon it a shining doubloon, proceeded to explain : — 

" I see that you don't recognize me. I am the man 
you saved from ruin by lending me this amount two 
years ago. I owned a flat-boat ; it had sunk with 
all its contents, and I was left penniless. I knew no one 

24 



186 LIFE OF EDWARD LIVINGSTON. 

here, and had no means of getting back to Kentucky. 
I calculated that it would take just that sum to carry me 
home. Had I not been ill, you would have seen me last 
year. But I am here now, and everything has prospered 
with me since we met." 

He was asked what had induced him to think of Mr. 
Livingston in his distress ] He replied, " Well, I can't 
tell exactly, only I came from Livingston County, in Ken- 
tucky, which was named in honor of the author of the 
speech on the Alien bill, and, having had you pointed out 
to me as the same man, I thought I had more claim on 
you than on any one else." 

From another of these walks he returned home com- 
pletely drenched. His, family, in surprise and alarm, ex- 
claimed that he looked as if he had been in the river. 
" So 1 have," said he, laughing heartily. " As I was walk- 
ing on the levee, I amused myself watching the progress 
of a little canoe crossing the river, with a solitary man 
rowing it. Suddenly, from some imprudent motion, 
the boat pitched on one side, and the man fell into the 
water. Evidently he could not swim. I threw olF my 
coat, jumped in, got hold of the man just as he appeared 
to be sinking, and brought him to the boat, which was 
righted. He seized the side, and, clambering in, rowed 
off without looking at me, — I suppose because I had not 
been properly introduced to him, — and I was left to 
find the shore as best I could, which, loaded as I was 
with clothes and boots, was not so easy a matter." 

A memorandum-book for the pocket, which Mr. Liv- 
ingston carried in 1809 and 1810, contains, so far as I 
know, the latest of his "attempts at poetical composition. 
He seems to have been by this time, and probably long 
before, convinced that though he had always loved and 
appreciated the poets, the art of lyrical writing was not 



DISAPPOINTMENT AND AFFLICTION. 



187 



among his own gifts. The attempt to which I now refer 
is a paraphrase of the beginning of the fourteenth ode, 
second book, of Horace. It consists of only six Hnes, 
and closes abruptly with an unfinished sentence. The 
following is the whole of this fragment : — 

" ' Eheu ! fugaces, Postume, Postume.^ 
" They fly, my friend, they swiftly fly, 
These days we pass so sweetly ; 
In vain doth worth, doth virtue try 
To make them pass less fleetly. 

" Wrinkles and age, dear Dan, they bring, 
Disease and death, the care of all " 

The critical reader will perhaps think that he judged 
rightly in reserving for compositions of a very different 
species the perseverance of which a striking illustration 
is hereafter to be given. 

During this epoch his anxiety to be reunited to his 
children increased from year to year. Julia was approach- 
ing womanhood, beautiful, accomplished, and amiable, 
and he was debarred from witnessing her daily progress. 
But his correspondence with her was constant. I have 
now before me a package of her letters, written to her 
father in 1810 and 1811. Some of them enclose letters 
to her step-mother, written in French. Towards her 
father, they breathe a love and respect almost idolatrous. 
In one of them, dated at Philadelphia, she says, " The 
principal reason, I believe, of my being so pleased with 
this city, is because almost every one here speaks of you 
in such high terms, and appears to take so much interest 
in your welfare. And, now, adieu, my dear, my be- 
loved father ; believe me that I love you most truly, most 
tenderly ; that my whole heart is yours, except one cor- 
ner of it, which is devoted to the memory of her who 
alone had an equal share wuth you in the affections of 
your Julia." 



188 LIFE OF EDWARD LIVINGSTON. 

The mind and person of this child were impressed with 
a peculiar delicacy and a certain melancholy which al- 
ways seemed to foreshadow an early decline. The soli- 
citude of her father on this account became anxiety in 
the winter of 1813, and, in the following- summer, alarm. 
In Auofust, the account he received of her he considered 
as a summons to New York, if he would see her again. 
The voyage was rendered uncertain and dangerous by 
the state of the war. He embarked, however, by the 
first opportunity, on board a schooner which narrowly 
escaped capture, and, after an unexpectedly tedious pas- 
sage, arrived safely at New York, about the middle of 
October. He hastened, with an anxious heart, to the 
house of his brother in Greenwich Street, though he was 
aware that the family were at their country-seat on the 
Hudson. After hurriedly inquiring about the family 
of the servant who opened the door, he asked, " How is 
Miss Livingston \ " The servant, not knowing who he 
was, replied, " She was buried, Sir, yesterday." The 
tender father staggered under the blow, and carried its 
visible traces, not only upon his sad, returning journey, 
but for a long time afterwards. In his first interview 
with his wife and child on reaching home, he could 
scarcely speak of his grief, and convulsive sobs were 
mingled with the few words he uttered upon the subject. 
He shortly afterwards wrote to one of his sisters : — 

" Do not, I entreat you, think me wanting in that 
affection I have always borne you, from my not writing 
you since my arrival. I can only trust my pen on sub- 
jects of business, and I strive to confine my thoughts 
to the same object. The bustle of my profession keeps 
me from a retrospect to which if I were to give way, 
I should lose myself forever," 

He now felt an absolute necessity for the companion- 



DISAPPOINTMENT AND AFFLICTION. IgQ 

ship of his son, a youth in all respects worthy of his affec- 
tion and care. The latter had returned before 1810 to 
New York, having- lived several years at the American 
legation in Paris. Possessing a manly character and a 
precocious mind, his letters and the accounts given of 
him by his friends had inspired his father with proud 
anticipations for his future. The course of his studies 
received constantly the paternal attention and advice. 
But so distant a supervision of one so dear could not 
satisfy the heart of the parent. In May, 1812, the 
latter had written : — 

" My dear boy, should I be disappointed in coming 
out this summer, by war or other accident, it is my in- 
tention that you should join me in the fall, by the way 
of the Ohio and Mississippi. I shall find some friend 
to accompany you, who is coming that way ; you shall 
pass the winter here ; in the spring vi^e all return to- 
gether, and from that time we shall not part any more. 
I learn with great pleasure, my dear son, that all your 
relations are pleased with your manners and your progress. 
Do they flatter me when they say so ? I hope not ; I 
believe not ; if they do, it depends only on you to make 
their flattery truth." 

I here transcribe in full three letters of the father to 
the son, written at this period : — 

LETTER NO. I. 

" N. O., 26th July, 1812. 

" Your letter, my dear boy, of the 1st of June is just 
received, and it gives me some uneasiness to find that 
none of those I had written to you before that have come 
to hand. Of two I had sent since, one has been returned 
to me, as the vessel was stopped at the Balize by the 
declaration of war, and the other is probably taken. 



190 LIFE OF EDWARD LIVINGSTON. 

Our communications in future must be altogether by land; 
and if the Indians should commence hostilities, even this 
will be a very precarious conveyance, for you know, I 
suppose, that in order to arrive here by land we must pass 
through several tribes of Indians. This circumstance 
will, I fear, prevent our meeting as soon as I expected. 
In the present state of things, I do not choose that you 
should come to me as I intended, nor can I with safety 
visit you. We must therefore indemnify ourselves by 
greater punctuality in our correspondence for the mis- 
fortunes which continue to separate us. 

" All the accounts I receive from your relations are such 
as I wish. They speak highly of your conduct, your 
deportment, and your diligence. Continue, my dear 
child, to deserve the approbation of your friends, and you 
will become what it is my first wish you should be, a 
well informed, and, above all, a good man. Preserve a 
rigid, an inflexible regard for truth : it is the foundation 
of almost every virtue. He who always tells the truth 
can neither be a knave or a coward. The reputation 
of always adhering to it gives a respectability which nei- 
ther riches nor talents can procure ; whereas he who has 
unfortunately acquired a contrary character can neither 
be esteemed, loved, or trusted. Let me hear, then, when 
we meet, that you have never been known either from 
fear or any other motive to have disguised the truth, and 
I shall embrace you with double delight. 

" I sent on some weeks since to your uncle C. a sum 
of money, out of which I desired him to pay you fifty 
dollars. It is my intention that you should dispose of 
this sum exactly as you think proper, with or without 
the advice of your friends. Every six months you shall 
have the same amount, so you may regulate your expenses 
accordingly. 



DISAPPOINTMENT AND AFFLICTION. IQJ 

" But you are by no means and on no occasion to bor- 
row any money, or in any other way to make any debts. 
This direction I hope you will scrupulously attend to, not 
only now but throughout life. 

" Your letter was fortunately fifty days in coming to 
me, or the prophecy of your man from the state-prison 
would have thrown us into consternation. The fourth 
of June passed away quietly ; and if two thirds of the 
world were then destroyed, we inhabit the favored part. 

" Farewell, my beloved son ; may Heaven bless and pre- 
serve you. 

" Edw. Livingston." 

letter no. ii. 

" A'^. O., 14th September, 1812. 

" I have just received, my dear son, your letter of the 
15th of August. The last post brought me another. 
I am well pleased with the frequency of your letters, and 
with the letters themselves. Your hand is already very 
well formed, and your style will become more easy and 
elegant every time you write. Frequent translations will 
also have that effect. You cannot yet, I suppose, enter 
into the beauties of any of the Latin authors. As soon 
as you can, select one of the passages which pleases you 
most, and make a free translation of it. This, I suppose 
you know, means giving the same idea which your author 
expresses in different words, whereas a literal translation 
preserves the very words of the original. In the mean 
time, pursue the same course in the French and English 
languages, taking your favorite author in each, and se- 
lecting the passages which strike you most. Rollin is a 
very good book to impress facts upon your mind, but I 
would not have you copy his style, especially in the 
English translation ; I would have preferred your getting 



192 LIFE OF EDWARD LIVINGSTON. 

it in the original ; and, since you are making- a collection, 
I advise you never to purchase, or even read a translation, 
if you can get the original. I want to know your taste. 
Do you read poetry or prose with most pleasure '? and of 
poetry which do you like best, the French or English ? 
Which is your favorite author '? Let me know all this 
when you write, and particularly what is your course of 
study and the division of your time. I cannot repeat to 
you too often that method is as important as applica- 
tion. Have a fixed time for each study and pursuit, and 
do not let them interfere with each other. You are at 
an age now, when, with an ardent desire to learn, you 
may make yourself master of anything. Without this 
you will never learn anything, for I do not call learning, 
getting a slight, parrot knowledge of any subject or 
science. Learn what you undertake thoroughly ; never 
be content while there is any one who knows more of it 
than yourself; and remember you are to do this yourself. 
The best masters can only point out the road, — you 
must travel it yourself; they may, indeed, remove diffi- 
culties that might otherwise stop you, but, after all, 
they cannot carry you, — you must march through on 
your own legs. I enclose letters from your mamma and 
little sister ; the latter entreats that you will answer with- 
out delay. It is her very first effort, and she would be 
dreadfully mortified if you were to neglect her. God 
bless you, my dear boy I 

" Most affectionately yours, 

" Edw. Livingston." 

letter no. iii. 

" March, 1813. 

" My Dear Son : I learn with very great affliction of 
the death of your cousin H. and the increased illness of 



DISAPPOINTiMENT AND AFFLICTION. I93 

your uncle.* They are calculated to teach us that neither 
youth, talents, or fortune, can secure happiness here. The 
innocence and filial alFection of the one has already secured 
to him that reward which the many virtues of the other 
will prepare for him whenever he is taken from us. I pray 
Heaven, that, notwithstanding appearances, this may be 
long deferred, and that he may yet live to multiply those 
good acts and services to his country which have endeared 
his name to all those who wish its prosperity. The dif- 
ficulties and dangers of travelling by land have increased 
so much that I must defer my return until the steamboats 
are established from this up the Ohio. The one employed 
from here to Natchez will make the experiment in about 
a month. Should her voyage succeed, of which I have 
little doubt, I shall take passage in her on the second 
trip in the month of August. My movements, however, 
will be very much influenced by the news I hear from 
AYashingtOTi. At any rate, my dear boy, most decidedly 
you must be with me wherever I am next winter ; my 
life wastes away at a distance from my children, and 
I may die before they have known me. I receive from 
everybody accounts which highly gratify me of your 
character, attention, and behaviour. Continue, my dear 
child, to deserve these praises, and to merit new eulo- 
giums. Strive to merit more than to receive them. Esse 
quam videri is a good motto, but in the end they amount 
to the same. Sooner or later the world will find us out ; 
our good qualities and talents will be admired, our 
faults and vices exposed, whatever care we take to conceal 
them ; and we shall appear what we really are whenever 
the veil is torn off'. That of merit is modesty ; that of 
vice, hypocrisy. Wear the first always, — the worthy 
know what treasures it conceals ; the last is subject to 

* Chancellor Livingston. 
25 



194 LIFE OF EDWARD LIVINGSTON. 

be drawn aside by a thousand accidents, and the vile fea- 
tures beneath it are exposed to the derision of the world. 
" When your sister arrives in the country, as I suppose 
she will shortly after this reaches you, go and spend some 
days with her. There is no reason why my children 
should be separated from each other, although I am forced 
to be so from them. Farewell, my dear son ; receive the 
blessing of your affectionate father, 

" Edw. Livingston." 

The plan of bringing Lewis to New Orleans had not 
been carried out before the melancholy visit to the North, 
as these letters show, and the affairs of Mr. Livingston 
would necessarily keep him yet for some time in Loui- 
siana. He therefore resolved to be separated from the 
youth no longer, and took him to New Orleans on his 
return. It resulted that the education of the latter was 
varied by an active participation in the stirring events 
of the close of the next and beginning- of the following 
years, — the memorable campaign for the defence of New 
Orleans. 



CHAPTER X. 

THE BATTLE OF NEW ORLEANS. 

Mr. Livingston's Services in the Campaign — His (Qualifications — His 
previous Acquaintance with General Jackson — Meeting of Citizens in Sep- 
tember, 1 8 14 — Appointment of a Committee of Safety — Address of the 
Committee to the People — Successful Defence of Fort Bovvyer — Procla- 
mations by Jackson — His Appearance and Reception in the City — His 
Intimacy with Livingston — Contrast and Concord between them — Mul- 
tifarious Services of the latter during the Campaign — Proclamation of Mar- 
tial Law — Gallantry of the young Lewis — Dangerous Service in the 
Night-battle of December 23d — Pleasantry under Difficulties — Rejoicings 
in the City after the Decisive Repulse of the Enemy — Influence of Liv- 
ingston in Jackson's Military Councils — The Lafittes — The Draughting 
of Reports, General Orders, Addresses, etc. — Despatch of Colonel Living- 
ston to the British Fleet to negotiate an Exchange of Prisoners — His De- 
tention and Return to the City with News of Peace — Arrest of Judge Hall 
under Martial Law — Subsequent Arraignment of General Jackson for Con- 
tempt of Court — Defence of the latter prepared by Livingston — Minia- 
ture of Jackson presented by him to his Friend — Project of a Life of the 
General — Mutual Attachment established between him and Livingston. 

THE detention of Mr. Livingston at New Orleans, 
so long deprecated by him as we have seen, en- 
abled him, in this celebrated campaign, to render services 
to his country the most opportune and the most signal. 
Indeed, there was no other man on the spot at all quali- 
fied for the very comprehensi^'e work which he then per- 
formed. His knowledge of the people and of the situa- 
tion was complete. His influence was extended among 
all classes. His judgment was cool, while his patriotism 
was wrought up so as to command all his energies and 
all his resources. Besides, he knew and was known 
to General Jackson ; for, as has been already partially 



196 l^IPE OF EDWARD LIVINGSTON. 

shown, when they had been, eighteen years before, fel- 
low-members of Congress, — the one a polished orator, 
representing the principal city of the Atlantic coast, the 
other an unfashionable figure from the wilds of Ten- 
nessee, — they had been political brothers and friends. 

In the first place, Livingston perceived afar off" the 
danger of invasion which threatened the city, and took 
active steps to awaken and prepare the people. Of this 
there was much need ; because the very mixed population 
of the city, though loyal and patriotic at heart, were yet 
indolent, incredulous, and occupied with local contentions. 
On the 15th of September a meeting of citizens as- 
sembled, at which he presided and delivered a speech, 
producing a thrilling effect, and offered a series of reso- 
lutions, affirming a faithful attachment to the govern- 
ment of the United States, a full faith that the coun- 
try was capable of defence, and a determination to 
risk lives and fortunes in defending it. The resolutions 
were adopted by acclamation ; and the meeting proceeded 
to appoint a committee of nine, " to cooperate with the 
constituted civil and military authorities in suggesting 
means of defence, and calling forth the energies of the 
country, to repel invasion and preserve domestic tran- 
quillity." Of the committee, Mr. Livingston was made 
chairman. 

The " constituted civil authorities" referred to in the 
resolution were even more sluggish than the people at 
large in comprehending the public danger, and were 
specially engaged in paltry squabbles, unworthy even of 
politicians, in the absence of a better employment. Of the 
negative qualities of the Governor, Claiborne, Mr. Liv- 
ingston had good reason to be aware, as we have seen. 

The committee immediately issued an address — drawn 
up by Mr. Livingston — to the people of the State. It 



THE BATTLE OF NEW ORLEANS. igy 

was a concise and stirring appeal to the sentiments and 
motives of every class ; and its effect was profound and 
jjcrvading". The exertions of the committee were active 
and continued. On the 21st of the month, and the mo- 
ment of receiving news of the successful defence of Fort 
Bowyer, at Mobile Point, it resolved on presenting " a 
sabre, with a suitable inscription and proper emblems," 
to Major Lawrence, the gallant and skilful commander 
of the garrison, whose obstinate bravery had achieved 
that important victory. Two clanging proclamations of 
General Jackson — one to Louisianians, the other to the 
free colored people of the State — inmiediately followed; 
and these events and appeals excited the people to a high 
pitch of loyalty, confidence, and unanimity. 

Jackson had received his appointment as Major-Gen- 
eral in the army of the United States in the previous 
month of May. He was now at Mobile, sternly resolved 
to defend the Southwest from invasion. With him 
Livingston corresponded, furnishing him with maps and 
information during the interval until his arrival, on the 
2d of December, at New Orleans. At the head of his 
committee, and in company with the Governor and other 
authorities, he was among those who first welcomed the 
General on his entrance into the city. The formal ad- 
dress was made by the Governor. General Jackson's 
response briefly expressed a fierce determination to save 
the city, and a confident demand for the unanimous aid 
of the citizens in the task. His words fell without their 
proper effect upon most of the ears present, because the 
latter were unfamiliar with the English language. "This 
address," says Walker, "was rendered into French by 
Mr. Livingston. It produced an electric effect upon all ' 
present. Their countenances cleared up," etc. 

The same day the General dined at the house of Mr. { 



198 LIFE OF EDWARD LIVINGSTON. 

Livingston, and during- the remainder of the campaign 
the two were ahnost inseparable. In their general traits 
and qualifications two men could scarcely be more un- 
like ; but the contrast was such as to produce between 
them a most perfect accord at all times, and especially 
in the emergency which had then brought them together. 
Mr. Livingston served as aide-de-camp, military secretary, 
interpreter, orator, spokesman, and confidential adviser 
upon all subjects. He furnished an opinion in writing 
on the question of martial law, justifying its proclama- 
tion in case of a clear necessity, but not favoring the 
step in any other event. This opinion retarded, for a 
few days, the adoption of the measure; but on the 15th 
of December, it was foreshadowed in an eloquent proc- 
lamation of the General, drawn up by Livingston, and 
on the following day, martial law was declared. 

Mr. Livingston did not omit the opportunity of allow- 
ing his only and beloved son to pass through the lessons 
and perils of the situation. Under date of the 16th of 
December, the youth wrote to his aunt, Mrs. Mont- 
gomery : — 

" General Jackson arrived here about a fortnight since, 
and I have been all this time with him, visiting the dif- 
ferent posts. He has promised to receive me into his 
staff. To-morrow I am to have my appointment as en- 
gineer, with the rank of Captain or Lieutenant, I know 
not which. Great bustle but little alarm now prevail in 
town. We daily expect the enemy to make an attack 
upon this place. We are ready, however, to receive them. 
All the militia are now doing duty, and will leave town 
in a few days, and all do it with pleasure ; they vie with 
each other in showing their zeal. There now reigns 
but one party ; all are determined to oppose the enemy; 
and even my father, seized with a patriotic or military 



THE BATTLE OF NEW ORLEANS. 199 

ardor, has offered himself, and has been received as vol- 
unteer aid to General Jackson. The martial law was 
published this morning, and is now in execution. But 
I am writing a newspaper, not a letter." 

The place assigned to the youth was that of assistant- 
engineer under Major Latour, — afterwards historian of 
the campaign, — with the rank of Captain. He bore 
himself bravely. On the 6th of January, his father wrote 
proudly to Mrs. Montgomery : " Lewis has been in two 
actions, and has behaved with the utmost gallantry." 
And he gained the honor of being praised by name 
along with the chief engineer, " for talents and bravery," 
in general orders, at the close of the campaign. 

On the 18lh of December, Sunday, General Jackson 
reviewed all the troops in the city, upon the public square. 
The whole population was present, and contributed all 
in its power to give eclat and brilliancy to the display. 
It was, considering its materials, a most successful and 
inspiriting pageant. At its close, Livingston, standing 
near the Commanding-General, read before the troops and 
the assembled multitude, in tones never forgotten by those 
who heard them, an address which moved the enthusiasm 
of every class. It was a most timely and skilful appeal 
to all the leading sentiments and motives of a motley 
population, — Americans, Frenchmen, Spaniards, Ger- 
mans, and men of color. It was a masterpiece of elo- 
quence, and stirred to its depths the patriotic spirit of 
the whole multitude. 

The fighting soon commenced. Throughout the cam- 
paign, Livingston, in addition to his other manifold tasks, 
constantly performed the dangerous duties of aide-de-camp. 
In this capacity, on the evening of the 28d of December, 
he went on board the Caroline, and explained to Com- 
modore Patterson General Jackson's plan for the com- 



200 LIFE OF EDWARD LIVINGSTON. 

billed attack upon the British force, encamped at Villere's 
plantation. In the night-battle which followed, he was 
much exposed while carrying the General's orders on 
horseback in all directions. His bravery on this occa- 
sion was particularly acknowledged by Jackson, in his 
official despatch reporting the engagement ; and, in the 
general orders at the close of the campaign, dated the 
21st of January, it was declared that " the General's aides- 
de-camp, Thomas L. Butler and Captain John Reid, as 
well as his volunteer aids, Messrs. Livingston, Duncan, 
Grimes, Duplessis, and Major Davezac de Castera,* 
the judge-advocate, have merited the thanks of the Gen- 
eral by the calm and deliberate courage they have dis- 
played on every occasion and in every situation that 
called it forth." 

Livingston's love of pleasantry was perpetual, and did 
not forsake him even in the midst of the cares and 
dangers of a position to him so novel. Mr. Nolte, a 
merchant, was one of his clients, and had joined one of 
the volunteer companies of the city to aid in its defence. 
When the experiment of using cotton bales for filling 
redoubts was adopted by Jackson, a quantity belonging 
to Nolte was first taken from a vessel in the stream which 
was ready for sailing at the time the British fleet ap- 
peared. Nolte, on recognizing his property thus used, 
complained to Mr. Livingston, declaring it to be an 
outrage to take his cotton, which was of the best qual- 
ity and already shipped, while there was plenty of a 
much cheaper sort to be had in the suburbs. " Well, 
Mr. Nolte," said Livingston, " if this is your cotton, you 
at least will not think it any hardship to defend it." "j" 

* The brother of Mrs. Livingston, f Nolte relates this anecdote in 

afterwards sent by President Jackson his book entitled Fifty Tears in both 

as charge d'affaires of the United Hemispheres. I should not repeat 

States at the Hague. it on the testimony of this lively but 



THE BATTLE OF NEW ORLEANS. gQl 

At this exact period his letters by every post to his 
sisters at the North reveal the fact that he was laborincr 
under something like a presentiment concerning his own 
fate. His farewells in these letters were more tender 
than usual, and on the 6th of January he wrote to Mrs. 
Montgomery : — 

" The service is dangerous, and we have lost many re- 
spectable citizens ; but the survivors are animated with 
a glorious spirit, and if we fail, the enemy will not find 
us an easy conquest. Farewell, my dear sister ; the 
chances are now greatly increased against our meetina;'. 
Assure all my relations to whom I cannot write, that I 
love them very affectionately." 

But both father and son escaped all harm. Lewis, — 
the boy-captain, • — in the following passage of one of his 
letters to Mrs. Montgomery, dated February 2, described 
the fete and triumph which greeted the victorious army 
on its return to the city. I transcribe it, for its fresh- 
ness, from the original letter now lying before me : — 

" Was there ever a finer sight, or a more aifecting 
one, than that which presented itself to our view on 
the 23d ultimo, when the main body of the army, mostly 
composed of fathers of families, returned, with their brave 
and modest leader, General Jackson, at their head, amidst 
the acclamations of an immense multitude of old men, 
women, and children, (the only ones who did not share 
in the dangers of the field,) who all hailed them as the 
saviours of their country and themselves ? . . . . 

" On the 24th, the General, accompanied by all his 
staff, proceeded to the Cathedral, where a grand Te Deum 
was to be sung. On the public square, facing the build- 
ing, was erected a triumphal arch. On both sides of 

most mendacious writer alone. It Orleans, not long after the campaign, 

IS confirmed to me by the memory and of course, many years before 

of those who heard the story at New Mr. Nolte's volume appeared. 
26 



20£ LIFE OF EDWARD LIVINGSTON. 

this, a few steps back, were stationed our best-looking 
troops ; and in front of these, nearest to the arch, were 
to be seen eighteen young ladies, dressed in the same 
apparel, and each representing one of the States. In the 
middle of the arch there were two little children, stand- 
ing on two thrones, erected on both sides, between the 
columns of the arch. Each held a crown in her hand : 
General Jackson easily found out who they were for ; 
his modesty suffered, but he was obliged to submit. He 
passed through the arch and was crowned, amidst the 
huzzas of the Americans, and acclamations of the French, 
who did not cease to repeat, ' Vive Jackson ! Vive notre 
General .^ ' " 

After the decisive battle of the 8th of January, Gen- 
eral Jackson felt a strong inclination to follow up the 
victory by attacking the enemy in his position ; and he 
had nearly resolved upon doing so, when a council of 
officers was called to consider the plan. At this council, 
Mr. Livingston — bearing the temporary and for him 
odd title of Colonel — was the first to speak in oppo- 
sition to the scheme, as too full of needless hazard. His 
views, seconded by General Adair, prevailed with the 
Commander-in-Chief, who, after hearing these two ad- 
visers state their opinions with great clearness and force, 
determined upon the more prudent course. 

The vehement Commander-in-Chief yielded, on more 
than one occasion during the short campaign, to prudent 
suggestions made by his friend, and in one important, if 
not vital matter, suffered the same mild influence to over- 
rule a judgment into which he had prematurely rushed, 
but to which he had distinctly committed himself. In 
one of the two proclamations already mentioned, to the 
people of Louisiana, which he sent forward from Mobile, 
in September, and before he had come to rely upon Liv- 



THE BATTLE OF NEW ORLEANS. QQS 

ingston's pen for the composition of such papers, he 
had referred to an attempt of the British commanders 
to " court an alliance with pirates and robbers," and to 
their having- made otiers to " the pirates of Barataria," 
whom he characterized as " a hellish banditti." These 
" pirates of Barataria " were a company of smugglers 
and outlaws, ruled by Jean Lafitte, who had extensive 
dealings with the privateers then ranging the Gulf of 
Mexico, under commissions from their Christian majesties 
of England, France, and Spain, on the one hand, and 
on the other with the merchants of New Orleans. The 
character of Jean Lafitte, of his brothers Pierre and 
Dominique, and of their band, was better understood by 
the people of New Orleans and by Mr. Livingston than 
by General Jackson, Early in September, Colonel Nich- 
ols, of the British army, had made an earnest overture 
to Jean Lafitte to tempt the latter and his Baratarians 
to join in the invasion of Louisiana. Lafitte, feigning 
a willingness to comply, but declaring that some time 
and some mystery would be necessary for making his 
preparations, immediately divulged the ov^erture to Gov- 
ernor Claiborne and the legislature, and calling himself 
a stray sheep, anxious to get back into the fold, oflfered 
to devote himself and his followers to the defence of the 
country, if their services should be accepted, with an as- 
surance of amnesty for their past conduct. The Gov- 
ernor and legislature hesitated ; but the communication of 
Lafitte becoming known at once awoke many citizens, 
including Mr. Livingston, to the peril impending over the 
city ; and the public meeting, with the appointment of 
a committee of safety, on the 15th of September, was 
the immediate consequence. The ofJ'er of Lafitte met with 
no official response until martial law was declared, and 
Jackson was, practically, dictator. Then the leader of 



204f LIFE OF EDWARD LIVINGSTON. 

the " hellish banditti " presented his proposal to the new 
power. He was supported in the application by the fa- 
vorable representations of many official persons and pri- 
vate citizens. The Commander-in-Chief was not easily 
convinced. But the calm and confident opinion of Liv- 
ingston prevailed in favor of the Baratarians. They 
were accepted, formed two companies of artillerymen, 
fought bravely and faithfully, and earned, what they re- 
ceived, a distinct acknowledgment in the General Orders 
of January 21st of their right thenceforward to the "sal- 
utation of Jackson's brothers in arms." 

Livingston illustrated his own willingness to trust the 
Lafittes, by committing to one of them the execution of 
an arrangement which he made for the safe removal of 
his wife and child, in case of the success of the enemy 
in getting to the city. 

The draught of the General Orders of January 21st, 
in the handwriting of Livingston, carefully corrected by 
erasures and interlineations, according to his unvarying 
wont in all serious compositions, still exists. The only 
difference between the draught and the document as pro- 
mulgated is, that in the former there is no reference to 
the conduct of any of the General's staff, or to that of 
the juvenile Captain Livingston, — an omission which, 
as we have seen, the Commander-in-Chief supplied. 

The busy pen which laboriously distributed in this 
paper, entitled General Orders, the honors due to the offi- 
cers and divisions of the little army of defence, produced 
also, on the same day, an address which was read, by 
Jackson's direction, at the head of each of the corps com- 
posing the line, recapitulating in stirring phrases the 
chief events of the campaign. After describing the 
battle of the 8th of January, this paper continues : — 

" And this glorious day terminated with the loss to the 



THE BATTLE OF NEW ORLEANS. OQ^ 

enemy of their Commander-in-Chief and one Major-Gen- 
eral killed, another Major-General wounded, the most 
experienced and bravest of their officers and more than 
three thousand men killed, wounded, and missing ; while 
our ranks, my friends, were thinned only by the loss 
of six of our brave com})anions killed, and seven disabled 
by wounds. Wonderful interposition of Heaven ! Un- 
exampled event in the history of war ! 

" Let us be grateful to the God of battles, who has 
directed the arrows of indignation against our invaders, 
while he covered with his protecting shield the brave 
defenders of their countrv. 

" After this unsuccessful and disastrous attempt, their 
spirits were broken, their force was destroyed, and their 
whole attention was employed in providing the means 
of escape. This they have effected, — leaving their heavy 
artillery in our power, and many of their wounded to 
our clemency. The consequences of this short, but de- 
cisive campaign are incalculably important. The pride 
of our arrogant enemy humbled ; his forces broken ; 
his leaders killed ; his insolent hopes of our disunion 
frustrated ; his expectation of rioting in our spoils and 
wasting our country changed into ignominious defeat, 
shameful flight, and a reluctant acknowledgment of the 
humanity and kindness of those whom he had doomed 
to all the horrors and humiliation of a conquered 
state. 

" On the other side, unanimity established ; disaffection 
crushed ; confidence restored ; your country saved from 
conquest, your property from pillage, your wives and 
daughters from insult and violation ; the Union pre- 
served from dismemberment ; and, perhaps, a period ])ut 
by this decisive stroke to a bloody and savage war. 
These, my brave friends, are the consequences of the 



£06 LIFE OF EDWARD LIVINGSTON. 

efforts you have made, and the success with which they 
have been crowned by Heaven." 

We have seen that the duties undertaken and per- 
formed by Mr. Livingston, during- this campaign, were 
of the most multifarious description. One of the la- 
bors specifically intrusted to him was that of looking 
to the strict security and proper comfort of the prison- 
ers captured and carried to the city after the battle of 
the !28d of December, including the wounded in the 
hospitals. 

On this occasion, his goodness of heart moved him to 
the irregularity of sending a badly wounded English 
officer, whom he found insensible, to his own house, 
where he was carefully nursed till he recovered. The 
importance of preventing the passage of the least commu- 
nication from the prisoners to the British camp was at 
that moment so vital that Jackson could not have tolerated 
such a proceeding in any other man then near him ; but 
he appears to have quietly sanctioned the step, relying 
implicitly upon the discretion of him whose unmilitary 
impulse had led him to take it. 

On the 4th of February, Mr. Livingston, in conjunc- 
tion with Captain White and R. D. Shepherd, Esquire, 
was despatched by General Jackson, with a flag of truce, 
to negotiate with Admiral Cochrane and General Lam- 
bert an exchange of prisoners. These officers were, at 
the moment of his arrival at the fleet, on the point of 
sailing in order to make a second attack upon Fort 
Bowyer, at Mobile Point. The concealment of their 
design was deemed by them so important that they took 
the extraordinary precaution of carrying him and the 
officers who accompanied him to Mobile Point, where 
he witnessed, on the 12th of the month, the surrender 
of the fort. He had chafed much under the detention, 



THE BATTLE OF NEW ORLEANS. 



207 



and had vigorously protested against it in writing sev- 
eral times. He was treated with great personal con- 
sideration by all the British officers, and he bore them 
much personal good-will in consequence. To Admiral 
Cochrane, who, during this interval, expressed his desire 
to possess a copy of" Wilson's celebrated work on the 
birds of America, he on his return sent his own copy 
of that book. Cochrane and his fellow-commanders 
had been particularly delicate in avoiding any expression 
which might possibly wound the patriotic sensibility of 
their guest and temporary prisoner. 

On the 13th of February, the day following the sur- 
render of Fort Bowyer, the commandant of the British 
fleet received official information of the fact that Great 
Britain and the United States had signed a treaty of 
peace. Hearty mutual congratulations were exchanged 
between the British officers and the Americans on board; 
and Livingston, now bidding adieu to his compulsory 
entertainers, on the 19th reached home, where his un- 
expectedly long absence had begun to cause much anx- 
iety, bearing the first news of peace, — news the official 
confirmation of which was eagerly looked for, till it at 
length reached General Jackson on the 13th of March. 

It was during the interval of twenty-two days between 
Livintrston's return from the British fleet and the arrival 
of official information respecting the treaty of peace, that 
Jackson, by retaining the city under martial rule, ex- 
cited the discontent of a portion of the j)eople, from 
which resulted the attempt by Judge Hall, of the Fed- 
eral court at New Orleans, to examine judicially the va- 
lidity of the proceeding, — an attempt ending in the 
sununary arrest and banishment of the Judge himself. 
The next day, a copy of the treaty of peace, forwarded 
by the Government from Washington, reached the Gen- 



208 LIFE OF EDWARD LIVINGSTON. 

eral, who immediately resigned his extraordinary powers 
into the hands out of which he had taken them. On his 
arraignment before the court, a few days later, for con- 
tempt, he (lid not appear by any counsel, but Captain Reid, 
of the regular army, his aide-de-camp, offered to read to 
the court a defence of the proceeding which had been 
taken against the Judge. The reading of the paper was 
not permitted. I have seen the draught of this defence, 
— an elaborate and respectful statement and argument, — 
in the handwriting of Mr. Livingston, much erased and 
interlined, according to his habit. How much, if any, 
of the deference to law and its tribunal which Jackson 
happily manifested on this occasion was owing to the 
wise influence of his now principal adviser, the reader, as 
well as I, can judge. 

Before leaving New Orleans, General Jackson sat for 
his miniature, painted on ivory, which he presented to his 
friend, with an expression of the sentiments which in- 
spired the gift, written upon a slip of paper inserted in 
the frame, as shown in the engraved facsimile * accom- 
panying this volume. This portrait, as will be seen, 
bears very small resemblance to the several likenesses — 
all taken nmch later — by which the inflexible features 
of Jackson are imprinted indelibly upon the popular 
mind. 

On the 10th of April, Livingston wrote to his sis- 
ter : — 

" We have just parted with our great and good Gen- 
eral, and his departure has left a gloom on every coun- 
tenance, and a void in every heart, except a few who 
envied his glory, or did not dare to partake in his dan- 

* This engraving, the work of Mr. is a both spirited and minutely close 
Ritchie, is of the same size as the representation. The painter ot the 
miniature, with its case, of which it picture was a French artist, M. Valle. 




iii 




/h^f K ■ - . V y 5 •^'- '^ " z<-c, '" > '^ - 



/. 



A/M,. iS 










jf/t€,y •/ /S/5 



THE BATTLE OF NEW ORLEANS. ^09 

gers. I have been with him from the time of his arrival, 
and am proud to think that I obtained his friendship and 
confidence. He presented me, on his departure, with a 
picture, which I shall leave as an honorable memorial to 
my son." 

Two letters, in my possession, dated, one in April, the 
other in June, 1815, written by Captain John Reid, the 
regular aid of Jackson, who accompanied him for some 
time after his departure from New Orleans, and who 
was afterwards brevetted Major for gallantry in the 
campaign, show that Mr. Livingston, to whom they 
were addressed, then entertained a plan of writing a 
biographical notice of the General.* They show also 
that the search for materials was not fruitful, which is 
the j)robable explanation of the fact that the projected 
work was not, so far as I can discover, actually com- 
menced. The materials which were collected for it were 
finally used by Reid himself in the work which, after 
his death, was finished by General Eaton. 

* The first of these letters was as questions on this subject as you may 

follows : — wish answered, and address them to 

« j/y f . »,f cr me in Tennessee. I will promise 

,, A "^M o and forward you the answers, with- 
" 22 April, isic. , , I -^^ 1 • • 1 

. out delay. It is by questionmg alone 

" Mr. Livingston,— Sir : Enclos- ^^at we shall be able to get at many 

ed I send you, by the direction of the f^^ts in this man's history. 
General, a short sketch of his life. .* Respectfully, Yr. Obt. St. 

I wish it were more circumstantial. >,<. Tqhn Reid." 

Perhaps when we get to Tennessee, 

and clear of these dinners, one more In the second letter, written at 
to your liking may be forwarded. I The Hermitage, Captain Reid says, 
have just got up from an overwhelm- " I am now at the General's, en- 
ing dinner at this place, and have yet deavoring to collect the most cor- 
to write what you will find enclosed, rect information respecting himself 
A fine trim you will of course sup- and his achievements. From him I 
pose me to be in for this purpose, can gather but little, nothing being 
The General is just mounted and so irksome to him as to go into de- 
gone on, having left with me a kw tails about himself. As to his pa- 
hints on a scrap of paper. Nothing, pers, I am diving into four chests- 
he says, is so insipid and disagreeable full, not very well arranged, and 
to him, as to sit down in cold blood expect to bring up something of 
and write the particulars of his own value. I have made several ' grabs,' 
life. however, without catching anything 
" 1 wish you would put down such but ' muddy leaves.' " 
27 



210 LIFE OF EDWARD LIVINGSTON. 

These two men, — Andrew Jackson and Edward Liv- 
ingston, — so utterly unlike each other in nature, culture, 
and habit, and yet so adapted for mutual respect and 
for working harmoniously together, had now met at two 
different epochs of their lives, in circumstances calculated 
to attract each to the other most powerfully. How dur- 
able the attachment so formed between them was, and 
what an important influence it exerted upon the careers 
of both, is still to be told. 



CHAPTER XL 

LEWIS LIVINGSTON. 

Renewal of the Struggle for Pecuniary Independence — Necessity of 
again parting with Lewis — Return of the latter to the North — Letters 
from Father to Son — Labors of the former — Progress of the latter's 
Education — His Successful Mission to Canada to procure the Remains of 
General Montgomery — Scene at Montgomery Place on the passing by of 
the Escort, bearing the Hero's Ashes to New York — Return of Lewis to 
New Orleans — Crisis in the Batture Litigation — An Adverse Decision — 
Fortitude of Mr. Livingston — His Services in the Legislature of Louisiana 
— Uneasiness on Account of the State of Lewis's Health — Voyage of the 
latter to Europe — His Letters — His Rapid Decline and Death — Depth 
of his Father's Grief. 

MR. LIVINGSTON was now fifty-one years old, 
and the burden which had oppressed his heart 
for twelve years still clung to him. The Batture en- 
terprise, which had assumed the form of a lawsuit, with 
many complications, had so far proved an ignis fatims^ 
leading him out of his regular path only to disappoint 
him. The opening of the courts in May following the 
campaign which had for months occupied all his mind and 
strength found him still toiling for subsistence, and still 
hoping for the accomplishment of his independence. He 
had no alternative but " to labor and to wait ; " and 
bravely and quietly, though with secret sadness, he con- 
tinued the struggle. On the 10th of April he wrote to 
Mrs. Montgomery : — 

" It is possible, but not certain, that we may pay you 
a visit tliis summer. The old difficulty, that of money, 
will alone prevent it. Our courts have been closed since 
the invasion, and will remain so until next month. Should 



Q12 LIFE OF EDWARD LIVINGSTON. 

I be sufficiently successful to warrant the expense, I will 
come on. I have a good chance, I think, now, of putting 
down the opposition to my title ; and the return of peace 
will restore the usual value to the property. This, if 
the blessed day ever arrive, will enable me to do justice 
and become independent. A few months will decide it." 

But instead of a few months between him and " the 
blessed day " which he had already waited for so long 
and so wistfully, there remained yet an interval of years, 
to be passed in patient labor and controversy, disappoint- 
ment, discouragement, and affliction. Certainly it is 
one of the saddest sights in the world, to see a great 
soul, to whose nature the love of money, in the ordinary 
sense of the phrase, is as foreign as it is to childhood, 
battling in vain with such a destiny. 

The unhappiness of his situation was heightened by 
the necessity of again parting with his son. The edu- 
cation of the latter could not be advantageously pursued 
at New Orleans, and that his education should be of 
the most thorough and the most practical kind was one 
of the father's principal cares. The manliness and sense 
of the youth had now inspired him with such confidence 
in his principles and judgment that he resolved to send 
him North, to depend on himself in the selection of his 
teachers, the distribution of his time, and the management 
of his purse, with such oversight only as he might give 
by correspondence, until he should be able, as he still 
constantly hoped, to join him at New York. In the 
spring following the campaign this plan was put in ex- 
ecution, and several years of separation followed. Their 
correspondence was unremitted on both sides. Lewis, 
in his first letter after reaching New York in April, 
wrote as follows : — 

" I have been speaking a great w^hile of myself. In 



LEWIS LIVINGSTON. 213 

this case I think it was necessary. Besides, I am writing 
to my father, and I think Lord Chesterfield directs his 
son always to break through the general rules of corre- 
spondence and make himself the theme of all his letters, 
when writing to him. By the bye, do you know that 
I not only see a great similarity in the style of your 
letters and those of Lord Chesterfield, but also between 
the two persons to whom they are written, — two young 
men promising much, but disappointing all. I say prom- 
ising, because, if I am to believe my friends, great ex- 
pectations are entertained. The utmost pains were taken 
with Chesterfield's son, as they are now with me ; but 
I fear that, like him, I shall bring forth no fruit. Dave- 
zac used probably to be of this opinion, for in his merry 
moments he was frequently in the habit of calling me 
young Stanhope. But, however much I may resemble 
him, I think I can promise that in some respects at least 
the parallel shall not hold good." 

Some pages will be here devoted to the preservation 
of the following of Mr. Livingston's letters to his son, 
written during this period : — 

LETTER NO. IV. 

"iV. O., July, 1 8 15. 

" You are by this time, my dear son, if my prayers 
are heard, enjoying the society of your relations in the 
land that gave you birth. I wish to heaven my affairs 
permitted me to join you; the time, however, may not 
be far distant ; in the mean time we must submit to be 
patient. 

" I wrote to your aunt M. by last mail, and hope 
she has received my letter. She has expressed most 
affectionate intentions towards you, for which I am very 
grateful ; but I hope her desire to increase your fortune 



2l4i LIP'E OF EDWARD LIVINGSTON. 

may not induce her to forego any comfort or gratification 
wliic'li her age or rank in society requires. I am sure 
you will join in this wish, which I have urged to her, 
and which you ought strongly to express yourself. 

" You are now in a country where politics form the 
principal, perhaps I may say with the exception of private 
business the only topic of conversation. I wish to say 
a word to you on this subject. No man ought, especially 
in a republic, to be indifferent to the interest of his coun- 
try ; but there is a wide difference between feeling, and, 
on proper occasions, expressing this interest, and that 
noisy, intolerant zeal which disturbs society with ceaseless 
disputes, and can suffer no opinion contrary to our own 
to pass w^ithout contradiction. Unless the society of 
New York be very nmch changed, it is very much in- 
fected with this fault. It is a great one, even when 
committed by men whose age and standing in life entitle 
their opinions to respect, and who naturally are irritated 
when they are irreverently treated ; but it is intolerable 
in a young man. Whatever examples, therefore, you 
may see of this practice in your young friends, I hope 
and expect you will not follow it. Yours is an age for 
forming opinions, not for making proselytes. Those 
which you do form will always be, I trust, consistent 
with the principles of true liberty, without being influenced 
by the false wit of young persons whom I have heard 
ridiculing democracy and republicanism, not because they 
had a predilection for one form of government over an- 
other, or indeed understood the principles of any, but 
merely because they had imbibed a notion that it was 
not gentlemanlike to be a Republican. For yourself, my 
dear son, listen and read for some years, and you will 
then be able to speak with better effect, as well as to think 
with more precision, — and even disputes, though gener- 



LEWIS LIVINGSTON. 215 

ally very irksome to those who are not engaged in them, 
may become the vehicle of some information to you. 

" Let me know whether your stock of Spanish and 
of nautical knowledge is increased by your voyage. 

" I do not know whether you went down the bayou 
through which the British penetrated the country. I 
visited it about a fortnight ago. It is a fine river, and 
the road they constructed on its bank is still a good one. 
I am convinced that the attempt to annoy them in their 
retreat could not have succeeded. They were well for- 
tified at every turn. 

" I enclose a letter left for you by Mr. Brown to 
Mr. Monroe, and a plan given by Mr. Latour. He 
goes on with his book,* and will go to Philadelphia as 
soon as the translation is complete. 

" I embrace you, my dear son, very tenderly. 

" Edw. Livingston." 

letter no. v. 

" A^. O., ist of September, 1815. 
" I have just received, my dear son, your letter of 
the 29th July from Rhinebeck. I am very much pleased 
to find that you are passing your time so agreeably among 
your relations, but should have been gratified if you 
could have had recollection enough to give me some 
news of them. From your silence, however, I must 
suppose them all well, and from what you say I may infer 
that they are all happy. You do not even tell me where 
you have established your head-quarters ; if at Mont- 
gomery, you would have mentioned your aunt — . I am 
glad you have General Jackson's letter, and still more 
so that you view it in its true light as a stinmlus to 

* Historical Memoir of the War Latour. Translated by H. P. Nu- 
in West Florida and Louisiana, in gent, Esq. Philadelphia, 18 16. 
18 14-15. By Major A. Lacarriere 



216 LIFE OF EDWARD LIVINGSTON. 

further exertions. You are now at the very important, 
the very critical period of Hfe, when the reputation you 
are to enjoy in future is formed, and when, unfortunately, 
it is most difficult to impress a belief of that truth on 
the mind. On your employment of the next two years, 
perhaps on that of the present year, the present month, or 
week, (for not even the smallest period of time is now 
unimportant,^ may depend your consideration and char- 
acter in future life. I do not mean that you are to spend 
your whole time in study ; but what I seriously require 
is that you make study of some kind, the acquirement 
of some useful talent or agreeable accomplishment, your 
principal object for the next three or four years. In the 
mean time enjoy all the true pleasures of life ; see good 
company ; profit by it ; become cited for your ease and 
gentility of manner, for true politeness, (which is noth- 
ing but the practice of goodness in 'trifles,) as you may 
be for learning and talents. I will take care to ease 
you from any solicitude on account of finances. I have 
no interest but yours, and I know that at your time of 
life men are not very wise calculators. I hold this lan- 
guage to you, because I know that whatever I can afford 
to allow you will not be spent in vice or extravagance. 

" I will write to you soon on the subject of your re- 
quest to study at Philadelphia. There are great advan- 
tages attending it, and I believe, on the whole, it will be 
best. But wherever you are, I bespeak an hour every 
day for the Latin and Greek classics, one for Spanish, 
another for French exercises, and a fourth for some 
branch of the mathematics. The other twenty you may 
dispose of in such way as you think most profitable and 
most amusing. This, I am sure, is not unreasonable ; 
and wherever you are, even on a party of pleasure, four 
hours each day may be taken in the morning or evening, 



LEWIS LIVINGSTON. 



SI7 



and leave you all the time for amusement that can be 
required. I mention particularly the Spanish, because 
I have it very much at heart that you should be perfectly 
master of it. Our connections with the Southern con- 
tinent are every day becoming more important, and in 
whatever line you may be, a perfect knowledge of that 
language will give you a most decided advantage. We 
are all well, and love you affectionately. 

" Edw. Livingston." 

letter no. vi. 

" N. O. 

" My Dear Son : I have just received your letter of 
the 28th October. If I disapproved your conduct in 
any particular, it must have been very slightly, for I 
have already forgotten it, and cannot imagine to what 
part of my correspondence you allude, which you say 
made that impression upon you. I sent you by Mr. 
Spencer three bottles of mineral water, from a spring 
found on my lands on the Pass Christian on the margin 
of the sea ; and from the imperfect analysis I have been 
able to make here, it is found to contain sulphur and iron 
in unusual quantities. One of them you may try your 
own chemical talents upon ; give the others to Dr. Mitchill, 
or any other celebrated chemist who will take the trouble 
of making the analysis, and who will write me such an 
account of the nature of the water as I may publish, if 
I choose, with his name. 

" In pursuing your classical studies, I would recom- 
mend an attentive perusal of Livy, and even a transla- 
tion of some of those passages whose beauty strikes you 
most. Take, for example, the first twelve sections of the 
9th book, and when you have made a translation of it 
that pleases you, send it to me. I recommend Livy in 

28 



218 



LIFE OF EDWARD LIVINGSTON. 



preference to Tacitus, because I think it almost impossi- 
ble to render into any modern language the sententious 
brevity of the latter, while I think the flowery style of 
Livy may be imitated in English with some success. 

" I interrupted my letter here that I might try by 
exj)eriment whether the opinion I hazard is just, and I 
enclose, as a specimen,* the speech of Pontius from the 



* Translation from Livy enclosed 
in the above letter : — 

" To this Pontius replied : ' I nei- 
ther accept the surrender, nor would 
the Samnites confirm it, if I did. 
But you, Posthumus, if you believe 
in the existence of the Gods, either 
abide by your stipulation, or let ev- 
erything be as it was before you made 
it. Restore to the Samnites what 
they had in their power, or give them 
the peace for which they surrendered 
it. But why address myself to you ? 
you, who, with a mockery of good 
faith, came to surrender yourself to 
your conquerors. It is to the Roman 
people I speak, and I call on them, 
if they refuse the treaty of the Cau- 
dine Forks, to replace their legions 
in the toils where they were previous- 
ly entangled. There shall be no de- 
ception ; the treaty shall be annull- 
ed ; they shall receive the arms which, 
pursuant to its stipulations, they sur- 
rendered ; they shall occupy the 
same camp, and everything shall be 
restored to them which, on the day 
before the parley, they possessed. 
After this, they may with propriety 
resort to energetic counsels, and trust 
to the fortune of war. After this, 
if they choose, let them indignantly 
reject all offers of surrender and 
peace. On our part, we may then 
carry on operations with the same 
chance of success, and in the same 
situation in which we stood before 
they offered to capitulate. Then the 
Romans cannot complain of the 
terms imposed on their consuls, nor 
we of the ill faith with which they 
were violated. But have you ever 
waited for a pretence for breaking 
the engagements you made when you 



were .conquered ? You gave hos- 
tages to Porsenna, and you meanly 
stole them from his power ; you 
ransomed your city from the Gauls, 
and assassinated them while they 
were counting the price. You prom- 
ised us peace to procure the libera- 
tion of your legions, and you break 
that peace as soon as they are restor- 
ed. Never have you wanted a sem- 
blance of right to cover your want 
of faith. Does Rome disdain to pre- 
serve her legions by an ignominious 
peace .' Let her annul the treaty, 
but restore the captive legions to 
their conquerors ! This would have 
been a duty in which the imperial 
ceremonies might have been worthi- 
ly employed ; this would have ac- 
corded with their pretensions to good 
faith and regard to treaties. As it 
is, you have got all you expected by 
the treaty ; your citizens are restor- 
ed safe to their country, while the 
peace which was promised me as an 
equivalent is not preserved. An- 
swer me, Cornelius ! Answer me, 
Ambassador of Rome ! Is this your 
public faith ? Is this your law of 
nations ? As to these men you pre- 
tend to surrender, I neither receive 
them, nor consider them as offered 
to me. They are free ; let them re- 
turn to your city, loaded with the 
weight of the stipulations they have 
made, and with the anger of the 
Gods whose name they have profaned. 
Go, Romans ! Wage war upon us 
because Sp. Posthumus has just 
smote the Roman herald with his 
knee ! Go ! persuade the Gods that 
Posthumus is a Samnite, not a citi- 
zen of Rome, and that, because a 
Roman herald has been assaulted by 



LEWIS LIVINGSTON. QIQ 

XI. section of the book I referred to ; it is nearly a 
literal translation, and yet if I mistake not it might pass 
for an original composition in English. Independently of 
the beautiful language and elegant descriptive powers 
of the author, this passage of history is a very remark- 
able one ; but the law of nations must have been a very 
extraordinary one which would permit the historian to 
doubt whether, by the offer to surrender their General, 
the Romans were absolved from the obligations of the 
treaty : ' Et illi quiclem forsitan et piihlica sua certi 
liber ati fide^ etc. 

" In my last I requested the new distribution of your 
time ; do not forget to send it. 

" Yours, most affectionately, 

" Edw. Livingston." 

letter no. vii. 

"A''. O., October ist, 1815. 

" My Dear Son : Some vexatious business and a jour- 
ney I have been obliged to make have interrupted my 
correspondence with you for some weeks. In the inter- 
mediate time I have received yours written before and 
after your journey to the Springs, and previous to your 
journey to Niagara. I very much approve of your 
movements, particularly the last. 

On the subject of your studies and your residence 
it is time to come to some conclusion ; and in the reso- 
lution I have taken I give a proof of my confidence in 
your prudence that would make many wise people doubt 
my own. I will state to you what I wish and request 
you to learn, and I leave to yourself the selection of the 

a Samnite, the war you arc about to tempt to deceive us by tricks which 

wage is just. Do you not blush at would disgrace a boy ? Go, lictor ! 

this open mockery of religion ? Re- unbind these Romans ! let them de- 

spectable by office and by age, are part unmolested.' " 
you not ashamed of this poor at- 



^20 LIFE OF EDWARD LIVINGSTON. 

place in which it will be most practicable to obtain teach- 
ers and other facilities to carry my plan into execution. 
" First, you know my desire that you should not only 
be a good but an excellent scholar in the Greek and Latin 
languages; one hour or more must be employed regu- 
larly every day, without exception or excuse from pleas- 
ure or other avocations, in attaining this, for the next 
two years. If you continue thus long from duty, you 
will persevere afterwards from inclination. Whatever 
other studies you pursue, this must accompany them. 
You are sufficiently advanced, perhaps, in this branch, 
to proceed without much aid ; but I should prefer your 
passing your allotted hour in company with the best pro- 
fessor of the languages you can procure ; it will make 
you punctual in spite of yourself, and your studies will 
be faciHtated by the intercourse you must have with him. 
During that hour, be a perfect pedant. Have no other 
ideas but classical ones, and make it a practice to write 
a short version of them every day. A few lines only, 
if you put no interruption to your daily practice, will 
in a short time give you an astonishing facility. I once 
began this, but was foolish enough to discontinue it, and 
have never ceased regretting my want of perseverance. 
For this winter, your mathematical studies must be con- 
tinued with the greatest diligence. This is the great 
groundwork of all science, and of most of the Arts. 
Without a very considerable knowledge of them no 
eminence is to be attained ; it is the handmaid to the 
more showy acquirements, and abridges wonderfully the 
labor of acquiring them, if indeed they are to be attained 
without it. I do not speak of arithmetic ; that is in- 
dispensable to every man, from the Secretary of the Treas- 
ury to the grocer at the corner ; and not to have a per- 
fect and easy use of figures is a reproach to the mean- 



LEWIS LIVINGSTON. QQl 

est capacity ; connected with this, you will do well to 
get some idea of the practical mode of keeping' mer- 
chants' accounts ; you will find it of great use in life, 
particularly if you should choose the profession of the 
law. Your Uncle C, or any other merchant with 
whom you are intimate, will give you an idea of it in a 
few days. What I particularly mean is algebra, trig- 
onometry, surveying, navigation, perspective, and the 
other practical sciences to which it is applied. I do not 
want you to discover the quadrature of the circle, but I 
wish you to be a good geometrician, and able to follow 
or make any of the calculations that are usually found 
iu books of science. In physics, you will find this of 
the utmost consequence, and, indeed, most of the modern 
books on this subject are nearly unintelligible to one who 
is not an algebraist and geometrician. For the next 
three months, therefore, I think you should divide your 
time between the learned languages, matliematics, and 
Spanish. This w^ill occupy you four or five hours ; two 
hours more for history, accompanied by geography and 
the globes, will bring you to your dinner-hour, after which 
I have nothing further to say to you till ten, except to 
request that you pass your time in the best society in 
the place where you are, — the best informed men, the 
politest and most fashionable women, — but no carous- 
ing, no drinking-parties, no late suppers. You do not 
love wine, you justly abhor play, and you have no taste 
for bad company ; do not, therefore, let the fear of ridi- 
cule among a few idlers deprive you of the use of mo- 
ments so precious to your future prospects, to your hap- 
piness and that of your friends, as those which will make 
up the next two years of your life. 

" With all my confidence in you, my dear son, you 
cannot conceive my anxiety. I am doing a novel and 



222 LIFE OF EDWARD LIVINGSTON. 

a hazardous thing. I am trusting- a young man, not 
seventeen, to his own guidance, in the midst of the 
temptations of a populous city. I give him no superior, 
no monitor but his own sense of right. If you should 
be seduced by dissipation, if you should disappoint my 
expectations, what an eternal source of regret and self- 
reproach ! No ! I shall never forgive myself, if you 
are not everything I expect, everything I wish, that is, 
a good, a moral, an honorable, an accomplished and 
polite man. But though I cannot help feeling anxiety, 
I have no real fears, and I proceed with my plan. Af- 
ter two or three months you may let your mathematics 
give way three times a week to physics by attending a 
course of lectures on them at the University. Astron- 
omy and chemistry may follow in succession, and in 
the same manner. But do not confine yourself to the 
attendance on the lectures ; get acquainted with and cul- 
tivate an intimacy with the several Professors ; talk to 
them on the subject of their respective branches ; ask ex- 
planations, and get all the knowledge out of them you can. 
You will find each of them fond of his science, and he 
will be pleased with those who desire to excel in it. 

" During this time you will fro forma enter your name 
in the office of a lawyer, to save a year or two in case 
you should choose the profession of the law, — if at 
New York, Mr. Hoffman or Mr. Colden will do me 
this ffivor ; if at Philadelphia, Mr. Du Ponceau. As 
to the choice of place, speak to Chancellor Kent, who 
is my particular friend and a man of superior judgment 
and learning, and after getting all tlie information in 
your power as to the comparative merits of New York 
and Philadelphia for your plan, take a room in a pri- 
vate ftmiily, and send me an estimate of what you will 
want as well for your board, lodging, and tuition as other 



LEWIS LIVINGSTON. 

expenses, which I am willing- should be such as are ne- 
cessary for a young man to appear in good society. By 
this I do not mean a leader of the fashion, a beau, or a 
pillar of public assemblies. The attendance on those 
diversions which encroach on the night you will find 
totally incompatible with such a steady pursuit of your 
studies as I trust you will maintain. Early rising is 
indispensable, and you will never attain eminence in 
any of the pursuits allotted for you, if you suffer the 
evening's amusements to encroach upon the morning's 
studies. 

" I give you no particular allotment of your time ; that 
must depend in a great measure on circumstances, but 
it will be extremely important for you to make a distri- 
bution, and to abide by it. If there is a good riding- 
master, take a few lessons, and keep up your fencing. 
Painting I know you will of course cultivate. When 
you are fixed, let me know very particularly how you 
divide your time. I shall send funds to your uncle C. 
to provide for your expenses, to be paid quarterly in ad- 
vance. At present I presume |2000 per annum will 
be sufficient; but I am not well informed as to the rates 
of things in the United States. Therefore make your 
own estimate, and if $500 more be necessary, it shall 
be provided. 

" I have spoken of your entering your name in a law- 
yer's office, in case you should choose that profession, for 
it is absolutely necessary you should have one. Should 
you have a fortune, it will enable you to preserve and do 
credit to one; should you have none, it will be neces- 
sary for your support. 

" Farewell, my dear son ; we all embrace you ten- 
derly, and love you dearly. 

" Edw. Livingston." 



2i£4' LIFE OF EDWARD LIVINGSTON. 

LETTER NO. VIII. 

" iV. O., 29th December, 18 15. 

"My Dear Son: I have received yours of the 1st 
of December, and am sorry that you cannot find accom- 
modations in a private house. The great number of 
persons with whom you must necessarily associate in a 
lodging-house will, I fear, interrupt the constant atten- 
tion which is now necessary for your studies. I say 
now, because the events of the last year have not only 
interrupted them, but have brought you forward be- 
yond your years, and led the world to expect more from 
you thah would be required from a young man of the 
same age who had spent his time in retirement. This 
ought, you will say, to be the reverse ; but the world is 
not always just. You do not tell me in any of your 
letters whether you have found proper instructors in 
the different studies I have recommended, nor do you 
give me your reasons for preferring New York to Phil- 
adelphia as the seat of your studies. All this I wish 
much to know. There are some other points in my 
former letters on which I asked for information, that 
you do not notice in any of yours. This must arise 
from your not having my letters before you when you 
write to me. Unless you do this, you may write to 
your correspondents, but you will never answer their 
letters, and this is losing the best advantage of a cor- 
respondence. 

" If only three years' study in an office are necessary 
to procure admission at the bar in New York, you need 
not enter your name until you are eighteen, as you can- 
not be admitted before twenty-one. Inform yourself on 
this point, and follow the advice of Mr. Golden, which 
you will request him in my name to give you. Let me 
know in your next what studies you pursue, who are 



LEWIS LIVINGSTON. Q23 

your instructors, and exactly how you divide your time 
between them. What society do you most frequent '? 
Whicli are the houses you are most intimate in ] Have 
you been introduced to the French emigrants of distinc- 
tion, of whom there are several, it is said, at New York ] 
If any of them are coming this way, offer them letters 
to me, saying that you are sure I will be ready to ren- 
der them any service in rny power, and that I shall feel 
great pleasure in their acquaintance, etc., etc. 

" Farewell, my dear son ; we shall soon begin a 
new year. You may make it a happy, by making it a 
profitable one, and I have no doubt you will. Though 
every succeeding revolution now drags me from the me- 
ridian of life, yet it raises you to it, and this is among 
the greatest of my consolations. May you shine, when 
you arrive there, with that true splendor, which virtue, 
knowledge, and talent united, only can give ! 

" Edw. Livingston." 

letter no. ix. 

" A'^. O., January 13th, 18 16. 

" My Dear Son : There will, I believe, be no neces- 
sity for your entering your name in a lawyer's office 
until you see me, which I hope will be in the beginning 
of the summer. Thank Mr. P. in your own name and 
mine for his offer, but do not accept. I would advise 
you to tell Governor Tompkins that you have consulted 
me on the subject of the offer he was kind enough to 
make to you of a place in his staff ; that I have desired 
you to say, I am very grateful for this mark of his atten- 
tion, hut that I am solicitous your studies for one year 
at least should receive no interruption, and therefore 
request that, if the place requires any duties which would 

interfere with them, he would defer the kindness he 
29 



226 LIFE OF EDWARD LIVINGSTON. 

intends you for about that period, when you will de- 
vote a portion of your time to his service with pleasure. 
Should he offer to give you the place without requiring 
any service that will interfere with your course of study, 
such, for example, as restraining it to attendance on gen- 
eral reviews in the city, I think there would be an ad- 
vantage in accepting it. 

" I am glad Mr. Vanderlyn is returned, and should 
be very well pleased to hear that you had prevailed on 
him to give you some lessons. If you were sure of 
obtaining his instructions or those of any equally cele- 
brated master in about a year, I should prefer your 
postponing this study until you were perfect in another 
which I think more useful, — drawing, perspective, and 
ground plans of buildings, fortifications, and machines, 
all of which you will find extremely important through 
life, and the last particularly in your study of mechanics. 
Field plans ought also to accompany your lessons of 
trigonometry and surveying ; after acquiring the theory 
from your mathematical teacher, you might, in your 
visits to the country, put it in practice with Mr. Cox. 
As a lawyer this knowledge will be found very useful 
to you. Your painting apparatus and other effects shall 
be sent by the brig Archimedes (I hail the omen while 
writing of mathematical studies to a young engineer !j. 
Before I am quite done with painting and drawing let 
me give you a serious caution on the subject of carica- 
tures. It is a most dangerous art even when discreetly 
indulged in, and a detestable one when directed by ill- 
nature or revenge, or even without these, by careless 
gayety. The very reputation of this talent is dangerous, 
should it even never be exercised. I know not a single 
advantage attending it. Never practise it, therefore, even 
among intimate friends. The diffidence you express 



LEWIS LIVINGSTON. 



227 



of your success in the different studies in which you 
are engaged is natural at the first view of their variety 
and difficulty. The perseverance I know you possess, 
will soon vanquish the first obstacles, and you will then 
pursue your course with the animation inspired by the 
certainty of reaching the goal. Be firmly persuaded of 
this truth, that, next to the consciousness of rectitude 
in religion and morals, the highest satisfaction the hu- 
man mind is capable of feeling is that derived from a 
sense of progress in knowledge. May a happy expe- 
rience teach you the force of this maxim ; then all the 
other adventitious pleasures of life will acquire a per- 
manence which the want of this consciousness would 
quickly destroy. 

" Edw. Livingston." 

letter no. x. 

" A^. O., i6th March, 18 16. 

" My Dear Son : You have some reason to complain 
of the irregularity of my correspondence ; I am pleased, 
however, to find it has no effect upon yours. Do not 
be afraid of your letters being troublesome to me ; on 
the contrary, I examine the series carefully to see that 
you do not fail in your engagement of writing at least 
once a week. Your last is of the 16th February, and 
you ought then to have received some letters I wrote 
in January. They will, however, before this have given 
you the information you desire as to my views respect- 
ing your studies and your profession. As to the first, 
you have exactly fulfilled them. You know the impor- 
tance I have always attached to the mathematics, and 
I am delighted to find that it is a favorite study with 
you. Your mother only yesterday predicted you would 
be extremely eaiinent in that branch, and she was of 



22S LIFE OF EDWARD LIVINGSTON. 

course much pleased to find by your letter to-day that 
her prediction will probably be verified. I have urged 
the necessity of a proficiency in the exact sciences more 
strongly upon you, because I have throughout life felt 
the deficiency of my own education in that particular. 
At college I had no one in whom I had sufficient con- 
fidence to convince me of the utility of these studies, 
and I was then only sixteen. I passed them over with 
the carelessness natural to my age, learning only so 
much as was necessary to the obtaining my degrees, and 
before I acquired experience enough to show me my 
error, professional business, politics, and misfortunes had 
brought me to an age at which it would have been 
ridiculous to attempt it. You have a right, my dear 
son, to the benefit of my experience, and I feel no mor- 
tification whatever in any confession that may be of use 
to you. Do not believe, however, because you are pleased 
with the precision of mathematical truth, that you are 
therefore excluded from eminence in those studies which 
give a greater scope to the imagination, and especially 
in eloquence. On the contrary, true eloquence can never 
be acquired without a foundation of that true logic of 
which mathematics is the basis. Imag^ination, unrestrained 
by the reasoning powers, is but another name for fancy, 
and fancy alone may sometimes amuse, but will never 
convince. It may excite admiration, but it is never per- 
manently useful unless it be made subservient to argu- 
ment, and argument is the demonstration of mathemat- 
ical truth. Connect, therefore, your studies of eloquence 
and the belles lettres with those sciences which can alone 
render them useful as well as ornamental. Do not be 
discouraged if for many years you should find a difficulty 
in expressing your ideas with the elegance you wish. 
If you have a sense of imperfection on this point, it is 



LEWIS LIVINGSTON. 



2!29 



only a proof that your taste excels your skill, and as the 
latter is to be attained by practice and a study of the 
best models, the circumstance that seems to discourage 
you at present ought to animate you the most ; you have 
the idea of excellence impressed on your mind, and while 
that is not corrupted be assured with diligence it can be 
realized. Were you now satisfied with your composi- 
tions, there would indeed be very little hope of your 
attaining the eminence to which you are destined if you 
persevere and improve your taste, and direct your studies 
by its dictates. My former letters will have anticipated 
the answer to those now before me relative to your fu- 
ture profession. The study of the law, whatever may 
be your destination in life, will always be extremely useful. 
I intend, therefore, that you should make yourself master 
of its practice as well as theory. But for one year, at 
least, I do not wish your attention diverted from the course 
of academical studies in which you are engaged. Dur- 
ing that time you had better remain where you are, I 
shall most probably be with you in June, when we shall 
be in time to take such measures as will be necessary 
to insure your admission at the bar as soon as your 
age will allow. 

" I am ever, my dear son, 

" Your truly affectionate father, 

" Edw. Livingston." 

letter no. xi. 

" April 29th, 18 16. 

" My Dear Son : I doubt very much the accuracy of 
your observation that the best writers are those who un- 
derstand no living language but their own ; on the con- 
trary, I would cite many examples to contradict it. 
Rendering the idiomatic phrases of a foreign language 



230 LIFE OF EDWARD LIVINGSTON. 

into our own is an exercise that must give a great com- 
mand of words to the student who is not content with 
a Hteral translation, which no man of common sense 
will be ; its difficulty gives a new spur to invention, and 
a sinole page of Tacitus or Rousseau has made me use 
more words, and shape more phrases, than if I had to 
compose twenty on the same subject. I do not, how- 
ever, advise the study of any language (except Latin, 
Greek, and French,) as matter of such primary impor- 
tance as to exclude that of the sciences, but I think they 
need not interfere. A very short lesson taken punctu- 
ally every day will, at your age, make you master of 
any language, and they are all ornamental and useful, 
though they may not be necessary. If you practise the 
law either in New York or Pennsylvania, you will find 
some knowledge of the German to be important. It 
is, however, a very difficult language ; and if you find 
that it trenches on the hours you set apart for any of 
the sciences, abandon it. I do not know whether to 
compliment you on your discoveries in physics or not; 
the pursuit of the perpetual motion, though always un- 
successful, may yet, hke that of the philosopher's stone, 
produce some improvement which would not otherwise 
have been made. I had, myself, thought both of your 
siphon and capillary tubes. The first I was very san- 
guine of, under the notion that the force of the water 
issuing from the siphon was in proportion to the height 
of the instrument, and not to the difference between the 
surface of the water and the lower orifice of the siphon,- 
as it really is. The capillary tubes, I found, would raise 
water; but I could discover no principle on which it would 
flow through them, unless they were bent into the form 
of a siphon, by which nothing was gained. I should 
like to see your plan. Look for improvements with as 



LEWIS LIVINGSTON. 231 

much dilig-ence as you please, but do not announce any 
discovery merely on its theoretical probability. The 
world loves to laugh at the miscalculations of the learned, 
and when they get the habit they will continue it, even 
without reason. As you quote my example, do not dis- 
regard a precept which has been proved to me by ex- 
perience. 

" Farewell, my dear son. 

" Edw. Livingston." 

letter no. xii. 

"■ N. O., 28th October. 
" It is very difficult for me, my dear son, to direct 
your studies at this distance ; my general plan has been 
frequently communicated. Mathematics in almost all 
its branches, you know I consider as the groundwork 
of all useful science, I might almost say of all useful 
knowledge. This I have often repeated; and you seem 
to be not only convinced of its truth, but to have acted 
from that conviction, and to have applied to that study 
with the perseverance necessary to become attached to 
it. A correct knowledge of the learned languages, you 
are also aware I consider necessary in the education of 
a gentleman. I do not mean to carry my idea of this 
necessity so far as to embrace that critical knowledge 
which can only be acquired by a sacrifice of other more 
useful studies ; but I think such a proficiency ought to 
be made by the student as will enable the man in his 
future life to taste the beauties of the Greek and Roman 
authors, — that he should read them with ease, and that 
he should persevere in his studies until he reads them with 
pleasure. After these come the modern languages, of 
which you already possess the principal and most diffi- 
cult. If your leisure will permit, I should advise you 



QS2 LIFE OF EDWARD LIVINGSTON. 

to add the Italian to your stock, but to pay your prin- 
cipal attention to the ready and elegant use of the French 
and Spanish, both in speaking and writing. A few 
minutes each day, regularly and attentively employed 
in composition, and using every opportunity of convers- 
ing with those who understand the language well, will 
attain this desirable end. On this subject let me guard 
you against that false shame which prevents learners 
from profiting by the conversation of strangers in their 
own language. Without seeming to seek for an oppor- 
tunity to display his knowledge, the man of sense will 
find an occasion of turning the conversation into the chan- 
nel from which he wishes to derive instruction. Read 
or recite as often as you can some portion of Racine's 
and Voltaire's tragedies, before some one capable of cor- 
recting your faults, and sufficiently intimate with you to 
do it freely. For French prose, I believe no author is 
so good a model as Rousseau. Observe that I confine 
my eulogium to his style, for I neither admire the man, 
nor many of his works ; but there is a harmony in the 
structure of his sentences which I can perceive, though 
I by no means possess an accurate knowledge of the lan- 
guage. As for the Spanish I must again insist on the 
great utility of a very familiar use of it. Our southern 
neighbors are rising in the political world, and the local 
situation of the United States will oblige us to an inti- 
mate connection with them. You have said nothing 
lately of the German ; if you find it interfere greatly with 
your other studies, you may discontinue it, for in truth 
it is not so essential as the others. After Latin and 
Spanish, Italian can without much difficulty be acquired 
in a sufficient degree to read their great poets, — it will 
not probably be very necessary for you to speak it. The 
studies I have mentioned may be considered as the run- 



LEWIS LIVINGSTON. 

ning base of your education, to accompany all the others 
to the end of the piece. The principles of astronomy, 
natural philosophy, chemistry, and natural history, may 
be acquired in a sufficient degree for future use dur- 
ing the course of the next year, in the order that 
your convenience or inclination may direct. I have said 
nothing of history, and its two attendants, chronology 
and geography, because I hope they are the occupation of 
all those odd ends of time which are not employed in those 
studies that require an instructor; nor of what is called 
moral philosophy, because I think the best system of 
morals is the dictates of an honest heart ; nor of logic, be- 
cause all that is necessary to be known of it is very little, 
and that little will best be acquired in the pursuit of your 
legal studies, which I do not wish you to think of till 
the end of the year. I hope because you are upwards 
of six feet high you have not thought it necessary to 
dismiss your dancing-master ; on the contrary, great 
grace of movement is necessary to make common-sized 
people forgive a tall man the advantage nature has given 
him in stature, I have before mentioned the necessity 
of fencing well; and if you have a good master, in the 
course of the summer take lessons in equitation. Grace 
in sitting a horse, and skill in managing him, are great 
advantages. 

" Your proficiency in drawing, and great taste for it, 
renders anything but a caution not to let it engross too 
much of your time unnecessary. Do not forget, how- 
ever, what I have frequently repeated, of the drawing of 
plans and machines, which is, hi my opinion, the most 
useful branch of the art. The order of these several 
studies, the time that you a])propriate to each, the choice 
of your masters, etc., etc., must be left to your own dis- 
cretion, on which I rely with confidence. I might assist 

30 



234 LIFE OF EDWARD LIVINGSTON. 

you greatly were I with you, and the sacrifice of your 
society costs me very dear; but I will not, to gratify 
iDyself, give up any important advantage to you, and 
indeed the consciousness of doing so would destroy all 
the happiness I should derive from having you with me. 
" Farewell, my dear son. 

" Edw. Livingston." 

letter no. xiii. 

" January 13, 18 17. 

" My Dear Son : I have just now received your letter 
of the 16th December, and am very glad to find that you 
are again seriously at work. Remember, however, that 
I neither expect nor desire that you should so devote 
yourself to study as to exclude altogether society and 
the amusements proper for your age. On the contrary, 
my plan for your education embraces a due proportion 
of all, and I have such confidence (rarely placed in one 
of your age) as to believe you capable of mixing them 
for yourself. You seem to speak discouragingly of the 
effects of your studies, and I imagine you allude to the 
learned languages ; it is impossible you can yet perceive 
the operation which this species of knowledge has on your 
style, or the importance of the store of ideas which this 
study will afford you. I am myself but an indifferent 
scholar. I spent my time rather idly at school, and still 
more so at college, which I left at a very early age ; but 
on mixing a little with the world I was fortunate enough 
to discover the defects of my education. I then began 
to remedy them, but was much counteracted in my en- 
deavors by my former habits of idleness, and by my new 
pursuits of pleasure. Notwithstanding these disadvan- 
tages, I have had some success in forming a style which 
has on particular occasions been commended; and I owe 



LEWIS LIVINGSTON. Qg^ 

it, I think, principally to a close attention to some of the 
classics, which I studied until I became enamored of their 
beauties. The advantages which I enjoy so imperfectly 
I wish you to possess completely ; so that when at my 
age you are writing to your son, you may not only im- 
press upon him by principle, but exemplify in your style 
and manner, the advantages to be derived from a perfect 
knowledge of the classic models of good writing. Modern 
authors have their day of fame ; they find admirers and 
critics ; but that which all the world has for two thousand 
years admired, and still admires, must be good, and there 
is no danger in forming one's self on such models. By 
forming I do not mean imitating or attempting to imi- 
tate in original compositions; but what I do mean is 
transferring their spirit into your writings by cultivating 
a taste for their beauties, and, when that taste is formed, 
indulging it by frequent perusals and translations. When 
you meet with a beautiful passage, such as some of the 
exquisite pictures presented by Livy, ask why they please 
you. Examine whether the story would be more strik- 
ing if told in any other manner, — if the parts could be 
diflerently arranged to greater advantage 1 If any figure 
or other ornament would render it more striking 1 Nine 
times out of ten, in the author I speak of, you will find 
that he pleases because he copies nature, and that all ad- 
ditional ornament would spoil the effect which is derived 
in his style from an inimitable simplicity. I am glad to 
find you pass but an hour in the office. This will not in- 
terfere with your course of studies, but may be made to 
cooperate with it. I would recommend you, therefore, to 
divide that hour between Quintilian and the Institutes of 
Justinian. To prepare yourself for the latter, read first 
with attention the chapter in Gibbon which contains 
the history of the civil law, and a little book called 



23(5 LIFE OF EDWARD LIVINGSTON. 

' Horse Juridicse,' which was published at Philadelphia 
by Mr. Da Ponceau, with some good notes. If I go on 
at this rate you will not complain of the brevity of my 
letters. By the way, that complaint may be anything 
else for aught I know. It is written in a style of obscu- 
rity that would do honor to Oliver Cromwell. I enclose 
it that you may send it back with explanatory notes. 
The first object of all writing, and particularly of letter- 
writing, is to be understood. This fault has not occurred 
in any of your letters before, and therefore it strikes me 
more forcibly. Farewell, my dear son ; I will not close 
my letter without expressing to you the pleasure I felt 
yesterday at hearing you spoken of in terms of the high- 
est commendation by General Ripley at a public dinner. 

" Edw. Livingston." 

letter no. xiv. 

" February, 1817. 

" My Dear Son : The people who tell you that I could 
pretend to any political advancement in New York, if 
they are not actuated by a complaisant insincerity, cannot, 
I think, be well informed. Popularity is a prize too 
eagerly contended for by candidates who make it the 
pursuit of their lives to leave any hope of acquiring it to 
one who never understood, and who disdained to prac- 
tise its mysteries. Of all the follies of my youth, and 
I have had too many, the one of which I am most per- 
fectly cured is the desire of political preferment. Do 
not take this as a general reflection applicable to all ; 
the pursuit of honest fame, the desire to serve your coun- 
try, the noble ambition of devoting even your life when 
her safety requires it, all these it would be a kind of sac- 
rilege to characterize as follies. Mine consisted in the en- 
deavor to push myself forward into places that would have 



LEWIS LIVINGSTON. 



237 



been, certainly as well, perhaps much better, filled by- 
many others, to the neglect of my private affairs, and by 
that means involving myself. Take this, therefore, as a 
rule which I cannot too often or too seriously impress 
upon you. Never accept any public employment that 
will directly or indirectly trench upon your independence. 
If my endeavors to secure your fortune should be unsuc- 
cessful, first procure, by your own efforts, such a provis- 
ion as shall raise you above the necessity of incurring 
any pecuniary obligation. You may then, and not be- 
fore, pursue your public duties without any danger of 
being forced by necessity to abandon them. I do not 
mean by this that you should endeavor to amass great 
wealth. Such a pursuit would be an unworthy one; but 
when wealth cannot be attained commensurate with our 
habits and desires, these last may be restrained to the 
limits of our circumstances, and the same end be attained 
with much less trouble. Adieu, my dear son. May 
Heaven bless you with as nmch fortune as you can wor- 
thily enjoy, and all the advancement that will tend to the 
welfare of your country. 

•'Edw. Livingston." 

letter no. xv. 

" 29th September, 18 17. 

" My Dear Son : This I presume will find you at 
New York, resuming your usual studies. I wish you 
particularly to go through the course of chemistry, min- 
eralogy, and geology, and above all things to continue 
your translations from the Latin and Greek classics, par- 
ticularly the historians. You say you cannot find a copy 
of Livy, — but surely in such a city as New York, you 
may borrow it, if you cannot buy it. Purchase a copy 
of Quintilian, which I wish you to study accurately. His 



238 LIFE OF EDWARD LIVINGSTON. 

Style is elegant, and his precepts generally correct. He 
requires more of his orators than can generally be attained, 
and, as well as Cicero in his treatise ' De Oratore,' con- 
siders a perfect orator as something more than human. 
But though none have acquired that point of perfection, 
a close attention to the study may enable some to approach 
it, and failure in such attempts is in itself attended with 
some degree of glory, and always with great advantage. 
The mind that is great enough to appreciate the char- 
acter of a great speaker, the spirit that has energy suf- 
ficient to attempt its acquisition, will always attain a high 
superiority, although other circumstances should prevent 
their reaching the goal. Should you enter your name 
in a lawyer's office on the same footing you were in 
Mr. P.'s, I advise you to read with attention and make 
extracts from the Institutes of Justinian. Read as much 
as possible from the original, and do not recur to the 
translation except for words and phrases you can find 
nowhere else. Calvin's 'Lexicon Juridicum,' which you 
will find in the City Library, will be a good assistant, 
and you had better have recourse to it than either to 
Cooper's or Harris's translation. 

" Much as I wish to see you I cannot think of let- 
ting you lose this important winter, which you would 
do by passing it here. 

"Edw. Livingston." 

letter no. xvi. 

'■'^Plantation Ste. Sophie, 7 December, 1817. 

"About the 1st of October, having exposed myself 
very much to the heat and rain, I was taken with a vio- 
lent fever, which reduced me very much. I thought it 
completely broken ; but it has returned at irregular inter- 
vals ever since, and has, I think, very much impaired 



LEWIS LIVINGSTON. ggg 

my constitution. I arrived here yesterday, and already 
feel so much benefit from the change of air and exercise, 
that, though I quitted my bed only forty-eight hours ago, 
I am strong enough to go about the whole day with- 
out any great fatigue, I was more sorry than surprised 
at what you tell me of the violence with which some 
persons enter into political animosities, fostering them 
until they make them personal, and giving themselves 
much more pain than they inflict. As to the particular 
subject of the conversation you relate, whether it be 
owing to a disposition I have always encouraged of for- 
getting injuries as soon as I possibly could, or not, I 
cannot tell, but I remember none which the gentleman 
alluded to has done which ought to make me, particu- 
larly at this distance of time and place, participate in 
the hostile feelings which others perhaps justly entertain 
towards him. I have long lost all feeling of party spirit; 
very good men think very differently on the same sub- 
ject, and no political measures, none but those tending 
manifestly to the ruin of the country, will ever excite any 
warm sensations, or provoke any warmth of language on 
my part. I would oppose all that I thought wrong, were 
I in any of the departments of government ; and I think 
it is but fair in me to believe that those who are there 
will act at least as wisely and as honestly as I should. 
To those, therefore, I leave it ; without, however, debar- 
ring myself the privilege of calmly, but independently, 
expressing my opinion -on every subject of public interest 
whenever occasion may require it. Mais pour en revenir 
a nos moutons. I spoke to you favorably of the Gov- 
ernor's measures, because I think them, as far as they 
have come to my knowledge, (which I confess is very 
imperfectly.) well calculated to promote the honor and 
permanent interest of the country, and to be based on en- 



^40 LIFE OF EDWARD LIVINGSTON. 

lightened and liberal views. His motives may be found- 
ed on personal interest or ambition. Of this I am no 
judge. I judge only from the effect, and I think until 
Heaven shall endow us with the faculty of reading the 
heart, it is the only fair mode of judging. But I do not 
desire to be his partisan, or the partisan of any man. 
If my earnest desire of returning to my country should 
ever be realized, I wish to avail myself of the happy ex- 
emption my absence has given me from all party attach- 
ment or animosities. I can then only enjoy that undis- 
turbed obscurity in which I wish to pass the remainder 
of my life. 

" I had several things to add which I must defer, as 
I find I have overrated my strength. God bless you, 
my dear son. 

" Your affectionate father, 

"Edw. Livingston." 

letter no. xvii. 

" September, i8i8. 

" My Dear Son : I have received your account of 
your expedition,* with which I am very well pleased. 
I could have wished, however, you had been more particu- 
lar as to the manner in which you carried on your ne- 
.gotiation. The Governor's indisposition prevented your 
seeing him, but you must have written, or did you trust 
altogether to the influence of Mr. Smith 1 

" If the great cause between the two fur companies 
was tried while you were there, you must have heard the 
best speakers at the bar. What is their force ] Is the 
question between them merely one of the boundary of 
their grants, or do they draw their privilege in question ^ 

* His mission to Canada to pro- which an account will be given fur- 
cure the removal of General Mont- ther on in the present chapter, 
gomery's remains to New York, of 



LEWIS LIVINGSTON. 241 

Is the foreign commerce carried on from Quebec or Mon- 
treal chiefly^ When I was there, about seventeen years 
ago, only vessels engaged in the carrying of furs came 
to Montreal. Did you see many of the British officers'? 

" I have received a letter from your Aunt M. She 
says that F. L. is about to prepare some biographi- 
cal notice of General Montgomery. Is he qualified for 
the task ? It is no easy one. The biography of the 
present day is wretched trash, — trying to raise common 
events by an inflated style, and sinking those that are 
truly great by a mixture of affectation and vulgarity 
of expression, — swelling the matter for a few pages 
into a large book, and filling the intervals between the 
thoughts with words. It would grieve me to see the 
memory of one for whom I had a regard oppressed with 
such a monument. I know of no one but General Arm- 
strong who could perform this task, both for General 
Montgomery and the Chancellor. 
" Farewell, my dear son, 

" I am, with the truest affection, yours, 

"Edw. Livingston." 

letter no. xviii. 
The date and beginning of this letter are wanting. It 
was probably written before some of the preceding. 

" AYhile on this subject, I wish you to get a large, and 
the latest map of the United States ; hang it up in your 
room, and, beginning either at the North or South, study 
every State successively, until you make yourself master 
of its boundaries, rivers, towns, harbours, etc.; and when 
you meet with well-informed men from any State con- 
verse with them on the subject of its geography, popu- 
lation, and history, until the principal points are well and 

31 



Q4f2 LIFE OF EDWARD LIVINGSTON. 

accurately fixed on your mind. The little odd minutes 
which form so large a portion of human life, and that 
are constantly lost in silly observations on the weather, 
etc., mav thus be turned to profit and amusement too. 
I would not, however, have you an importunate ques- 
tioner ; nothing' is more irksome. But the conversation 
may without any direct attempt generally be turned to 
the point you wish, and your man be made to give all the 
information he has, without being ordered to stand and 
deliver it. For instance, I will suppose that Mrs. Kin- 
sey, among her South Carolina guests, should receive an 
old officer who had served in the Revolutionary War, and 
had been present at the Battle of Camden : you will im- 
mediately turn to General Lee's Memoirs or Ramsay's 
History for the general account they give of that battle, 
and of the events which preceded or followed it. You 
will observe whether your authors agree or disagree on 
the leading features of the action, and you may after- 
wards without impropriety tell your veteran that you 
have read their accounts, but will be greatly obliged to 
him if he will tell you on which you ought to confide 
on such and such points. This, seasoned with a com- 
plimentary allusion to the share he had in the affair, or 
in the general course of the war, will induce him to com- 
municate with pleasure all he knows, and perhaps some- 
thing more ; for this you will have to make allowance, 
proportioned to the character of the narrator, — for this 
kind of information is not always the most correct. Con- 
versation rather gives us the means of acquiring the ma- 
terials of knowledge than knowledge itself. It pins facts 
in the memory by discussing them, and some little anec- 
dote or secondary circumstance, not thought of sufficient 
importance to find a place in a written relation, imprints 
the principal event indelibly on the memory. A ^ropos 



LEWIS LIVINGSTON. . £43 

of Revolutionary officers, they are a race of men that are 
now ahiiost extinct. By the time you enter hfe very 
few of them will survive ; they have generally received, 
and deserve the highest respect ; this veneration will in- 
crease as their numbers diminish, and as antiquity casts 
its glow over their faults. It will be interesting before 
you die to have known and conversed with such men. 
I would therefore advise you to cultivate their acquaint- 
ance on every proper occasion ; and when you receive 
any historical event from any one who was actor or pres- 
ent at the scene he relates, commit it in a few words to 
writing when you return home, with the name of the 
person from whom you had the information and the 
date. Such memoranda you will find hereafter of great 
use. 

" I am suffering under the effects of an influenza, which 
has stupefied and tormented me for a fortnight. This is 
a much better excuse for the Blue Devils than any which 
a young gentleman in your situation can possibly have. 
Yet they have not attacked me. Be assured that the 
Blue are not more pertinacious than the Black Devil, 
and the Scriptures say that if you resist him, he will fly 
from you. Apply the same remedy to the visitations of 
your azure tormentors, and be assured you will defeat 
them. 

" Adieu, my dear son ; receive the blessing of your af- 
fectionate father, 

" Edw. Livingston." 

During the period covering the dates of these letters 
Mr. Livingston placidly toiled in his profession, besides 
managing, or trying to manage, — though with a glar- 
ing want of economy and of skill, — to improve, in order 
to render marketable, two sugar plantations, of which he 



244 LIFE OF EDWARD LIVINGSTON. 

had become possessed, and all the while pushing hope- 
fully towards a determination his lawsuit, now a mon- 
ster of many heads. As it gradually grew evident to 
his mind that years must elapse before these resources 
would enable him to get clear of his burden, he thought 
of other plans, and, in 1816, undertook to furnish the 
government with a great quantity of live-oak timber, in 
satisfaction of his debt. Why he was unsuccessful in 
this, I have not been able to discover ; but the enterprise 
met with some miscarriage, and an undertaking which, 
most likely, some shrewd and ignorant man might have 
managed successfully, proved beyond the capacity of one 
who had shown his abilities equal to so many situations 
and such varied emergencies. The old and heavy debt, 
by its accumulations of interest, went on increasing from 
year to year. 

Lewis entirely justified the fond and unusual confi- 
dence which his father reposed in him. For three years, 
from the age of seventeen to that of twenty, he pur- 
sued his studies by himself at New York and Philadel- 
phia, in the very spirit of the injunctions conveyed by the 
letters from New Orleans. The result in the way of 
mental and social accomplishments was all that the pa- 
ternal standard exacted. He was of a tall frame, similar 
to that of his father, of swift perceptions and versatile 
tastes, of a sedate or slightly melancholy bearing, and of 
the strictest modesty and refinement. In the summer 
of 1818 he was commissioned, by the Governor of New 
York, De Witt Clinton, in pursuance of an act of the 
legislature of the previous session, to proceed to Quebec, 
to superintend the removal of General Montgomery's re- 
mains to the city of New York, — a commission which 
he executed with perfect address and judgment. From 
a minute report of his journey and proceedings on this 



LEWIS LIVINGSTON. 245 

occasion, written to his father, I extract the following 
humorous account of an embarrassment which his mod- 
esty suffered : — 

" So much for the General ; now a word for myself. 
The inhabitants of Whitehall, who with the prophetic 
spirit of the witches in 'Macbeth' had, as I have already 
informed you, hailed me Colonel, gave me, as the event 
turned out, the title I had a claim to. The Adjutant- 
General, on his arrival, showed me the General Order 
which had been issued, in which the name of Colonel 
Livingston stood prominent, and explained the mystery 
by presenting me a Colonel's commission, which the Gov- 
ernor was pleased to call a reward for my good conduct. 
If the other grades are to be obtained at so easy a rate 
as this, I do not despair of one day becoming a Major- 
General ; and, to say the truth, the honor that has been 
conferred on me I would willingly have dispensed with. 
I have felt so ashamed in opening letters directed to 
the colonel, that I think I could go to Quebec to un-col- 
onel myself." 

In the same letter, he compares himself upon this jour- 
ney to the ass loaded with relics, of La Fontaine, — the 
animal that found it difficult to avoid the mistake of 
appropriating the homage which the passers-by only in- 
tended for the load which he carried. 

On the £9th of June, Governor Clinton, who conducted 
the matter with a very delicate regard to the feelings of 
Mrs. Montgomery, wrote to inform her that the remains 
of the General had reached Whitehall, and that they had 
been received with appropriate honors by the fleet sta- 
tioned at that place. He added that he had directed a 
military escort to accompany them to Albany. The cor- 
tige arrived there on Saturday, the 4th of July. After 
lying in state in the capitol over Sunday, the remains 



246 LIFE OF EDWARD LIVINGSTON. 

were on Monday taken to New York, attended by the 
military escort, on board the steamboat Richmond, and 
on Wednesday were deposited, with due ceremonials, in 
their final resting-place at St. Paul's Church, under the 
cenotaph which had been erected by order of Congress 
many years before. 

The Governor had advised Mrs. Montgomery at about 
what hour the boat, bearing the remains of her husband, 
would pass her house, Montgomery Place. By her own 
request she stood alone upon the portico at the appointed 
time. She had lived with the General but two years. 
It was then almost forty-three years since she had parted 
with him at Saratoga. For a third of a century out of 
this latter period, the waters of the Hudson, like all other 
waters, had been ignorant of steam-vessels. The change 
which in the mean time had come over her person was 
not greater than that which the face of her country, its 
government, and all the objects with which she was famil- 
iar, had undergone. Yet she had continued as faithful 
to the memory of her " soldier," as she constantly called 
him, as if she still looked for him to come back alive and 
unaltered. The steamer halted before her ; the " Dead 
March " was played by the band, a salute was fired, and 
the ashes of the dej)arted hero passed on. The attend- 
ants of the venerable widow now sought her. She bad 
succumbed to her emotions, and fallen to the floor in a 
swoon. 

At the end of the same year, after a separation of three 
years and a half, Lewis rejoined his father at New Or- 
leans. The happiness of their meeting was only quali- 
fied by an intense anxiety caused by the situation of the 
affairs of the latter. It was a crisis in the litigation of 
his title to the Batture. A judgment had been rendered 
in his favor some time before, and he had confidently 



LEWIS LIVINGSTON. 



S47 



looked forward to the enjoyment of the fruits of this 
success, — freedom from debt, return from exile, tran- 
quil retirement; and he had not at first felt any appre- 
hensions respecting an appeal which his adversaries had 
taken. But that appeal was now soon to be decided, 
and some intimations which he had lately received alarmed 
him much. The letters written by Lewis, after his ar- 
rival, to his aunt, Mrs. Montgomery, portray vividly the 
incidents of the suspense which overhung the household. 
Under date of the 15th of February, 1819, he told her 
of the catastrophe,* in the following lines : — 

" The die is cast ; the unfortunate event for which my 
last letters must in some measure have prepared you has 
taken place ; and my father, in the evening of his days, 
finds himself robbed of his property, with all the forms 
of law and mockery of justice, — at a time, too, when, as 
he thought, all his difficulties had vanished, and he was 
soon to meet a reward for all the toil, trouble, and painful 
anxiety this unfortunate affair had cost him. The ways 
of Providence, we are told, are invariably governed by 
the strictest principles of justice, and we are perhaps 
bound to believe it; but certainly they are extraordina- 
rily mysterious. It is difficult to reconcile with our no- 
tions of justice the uninterrupted series of misfortunes 
which has attended my father, whose goodness and un- 
conquerable patience seem only to have made him more 
enemies, and drawn upon him greater persecutions. His 
usual fortitude, however, has not forsaken him on this 
momentous occasion ; and the dignified composure with 
which he listened to the judgment which blasted all his 
hopes, and stripped him of the fruits of fourteen years' 
hard and painful labor, drew tears from the eyes of all 

* This particular decision is re- Livingston in full, in 6 Martin's 
ported at length, with the opposing Louisiana Reports, 19-256; and see 
arguments of JVIoreau - Lislet and pp. 281-415 of the same volume. 



24.8 LIFE OF EDWARD LIVINGSTON. 

his friends, and struck with awe his bitterest enemies, — 
those even who were instrumental in his ruin. He does 
not utter a complaint ; but the shock has been too cruel 
and severe, and though he does not suffer his affliction 
to show itself by any outward signs, still it cannot but 
prey deeply on his mind. His health, which before was 
delicate, has been impaired by it, and, in his present situa- 
tion, I dread to think of the difficulties he has still to 
encounter. The public are equally surprised and indig- 
nant at the flagrant injustice of the case, and openly ex- 
press themselves upon the subject. They cannot help 
sympathizing for the unmerited misfortunes of a man 
whose worth, talents, and integrity they all acknowledge, 
and whose ruin they are now sensible has been effected by 
a few artful and designing men, who could not bear the 
idea of seeing the man they hated and envied add the 
advantages of wealth to those which nature and educa- 
tion had already bestowed upon him." 

When Livingston returned from the court to his house, 
on this disastrous day, his family began to express the 
feelings which filled their hearts. But he soon cut the 
conversation on this subject short by saying, " Come, let 
us say no more about it, and let us have the dinner 
served." During the meal he preserved his usual cheer- 
ful demeanor ; and afterwards, taking by the hand his 
little daughter, he walked with her, according to his habit, 
in the early evening, for an hour upon the levee, talking 
with her only of her lessons and the various topics which 
interest childhood, without allowing her to dream that 
any subject was resting heavily upon his mind. 

This adverse decision was by no means an end of the 
contest respecting the title of the Batture. The whole 
subject was not in question, and some reservations were 
made by the court in favor of his title to a considerable 



LEWIS LIVINGSTON. 249 

part of the property, to depend upon circumstances after- 
wards to appear. There was still much money to come 
out of this stubborn mine, once so promising ; but its 
realization was now quite indefinitely postponed. The 
litigation grew in intricacy, till Livingston, in later years, 
was accustomed to say, " This matter has become so com- 
plicated that only two persons in the world now under- 
stand it, myself and Mazureau," — referring to the lead- 
ing counsel employed in the case against him. He would 
add, "Perhaps I ought to say Mazureau and myself; for 
I don't know but he understands it better than I do." 

In 1820, Mr. Livingston accepted a seat in the lower 
house of the Louisiana legislature. A variety of notes 
and memoranda, in his handwriting, which I have ex- 
amined, prove that he was a most active and useful mem- 
ber ; that he served as Chairman of the Committee of 
Ways and Means, and that in this capacity he gave his 
industrious attention to a great variety of the ordinary 
subjects of legislation. He presently took the laboring 
oar in a commission, in which he was joined with Moreau- 
Lislet and Derbigny, charged with the task of reducing to 
a code the whole body of the law of the State relating to 
civil rights and remedies, — a task which was completed by 
the commissioners, whose work the legislature, in 1825, 
for the most part ratified. In the composition of this 
code there are manifest a care and an elegance hardly 
to be found elsewhere in the language of legislative enact- 
ments. Several titles — as those of obligations, of com- 
mercial agencies, and of partnerships — were solely from 
Livingston's pen, which he nevertheless industriously em- 
ployed upon other parts, as well as in shaping the whole 
structure, and in preparing elaborate reports to the legis- 
lature of the plans and progress of the commissioners. 

But the chief employment of Livingston at this time — 

32 



250 LIFE OF EDWARD LIVINGSTON. 

and perhaps the opportunity for broaching- it was his 
main reason for accepting a seat in the legislature — was 
the beginning of the most important labor of his life, his 
system of penal law, in which he undertook a more com- 
prehensive reform than had been suggested by any pre- 
vious legislator or writer. Of this work it will be a 
part of my remaining task to chronicle the progress, 
completion, and effect. 

In the winter of 18S1, in the midst of these occupa- 
tions, Mr. Livingston began to feel some uneasiness re- 
specting the state of his son's health, whose symptoms 
appeared to threaten a premature decline. Several phy- 
sicians were consulted, who united in advising the experi- 
ment of a voyage. In April, the young man sailed for 
France. The effects of the voyage did not prove so bene- 
ficial as had been hoped ; but still nmch encouragement 
was derived from the opinions of the French physicians 
who were consulted. The letters of the invalid to his 
father — touching upon all the topics which came in his 
way, persons, places, and politics, science, literature, and 
art — wear the easy grace of an accomplished and 
balanced mind. He was especially attentive to the col- 
lection and transmission of all books which he thought 
might help his father in the particular studies in uhich 
the latter was then engaged. In a letter, dated at Paris, 
the 28th of June, 1821, he thus described his first inter- 
view with Lafayette : — 

" You were not mistaken, my dear father, as to the 
reception that awaited me from this good old man. Had 
I been his son, it could not have been more kind and 
cordial. I called very early in the morning, and was 
introduced into a very modest little parlor, with no other 
ornaments than a fine engraving of Canova's statue of 
Washington, and a large framed tableau containing a 



LEWIS LIVINGSTON. 251 

print of the constitutions of the different States. Here 
I waited until my name had been given, and your letter, 
which I sent in at the same time, had been read. I was 
then led into an adjoining bedroom, where I found the 
General confined with a slight attack of the gout. Upon 
seeing me, however, he stretched himself out of his bed, 
and taking my hand with both his, he drew me towards 
him with so much warmth, and with an expression of such 
khidness and good-will as really quite affected me. He 
spoke of all our family with great interest, particularly of 
Mrs. Montgomery and yourself, regretting that there was 
so little prospect of his ever seeing you in Europe. How 
delightful it is to contemplate a mind like this ; to see a 
man, who, after having pursued such a career as Lafay- 
ette, and having reached the highest pinnacle of glory, 
(for I would not exchange his name for that of any man 
in Europe,) still possesses those social feelings which 
honor and dignify the human heart ; to see him, in the 
midst of his greatness, not unmindful of the friends of 
his early days, nor willing to forget services and acts 
of kindness received in other times. In this respect, 
nothing that has been said of him has been exaggerated; 
his countenance is the mirror of perfect benevolence, and 
no one in examining his features and his expression could 
say less than ' This is a truly good man ! ' He is now 
warmly engaged with Benjamin Constant and other true 
friends of their country in resisting the measures adopted 
by the Court party, — measures which, if persevered in, 
he thinks will prove fatal. He is convinced, he says 
openly, that nothing but the recollection of the horrors 
of the last revolution has induced the considerate and 
thinking men in the country to check the disposition 
everywhere evinced by the people to rise en masse. The 
very nature of the present debates, which are carried on 



/ 

252 LIFE OF EDWARD LIVINGSTON. 

with so much warmth as to have become even riotous, 
indicates an approaching catastrophe. The ministers are 
determined not to yield, and the people are equally de- 
termined not to be trampled upon. 

" General Lafayette, who is the only person I have yet 
called upon, advised me to have recourse to a Dr. Moreau, 
a friend of his, and a man of standing in his profession. 
I was of course guided by his advice, and received from 
him a letter for the Doctor, which has obtained me the 
most unremitted care and attention. Dr. Moreau rec- 
ommends the mode of life I am now leading, for about 
ten days longer, or until he has ascertained there is no 
danger of a second return of the ague, and then advises 
me to retire for some weeks to La Grange, to which I 
have received the most pressing invitations from the 
General." 

The next month, in a letter announcing the transmis- 
sion of several literary treasures, Lewis wrote as fol- 
lows : — 

" You will also receive a late production of Lord By- 
ron's, and a work upon ' La Legislation Criminelle,' by 
Dupin, who appears to be acknowledged as the head of 
the French bar. Whatever may be his talents, his char- 
acter presents itself in the most favorable point of view; 
for we see in him the generous advocate of Ney, of 
Labadoyere, of Lavallette and his deliverers, and of all 
who have had to contend against tyranny and injustice. 
His present work contains sentiments perfectly in unison 
with your own, and I send it under the idea that it may 
be useful to you in the formation of your code. As the 
business time of the year is now nearly elapsed, I pre- 
sume you are busily engaged in your great undertaking ; 
but it seems to me that you will hardly have got through 
the work before the next session of the legislature." 



LEWIS LIVINGSTON. Q^g 

The following passage is extracted from a long letter 
written by the young invalid while on a visit to the baths 
at Bagneres, in August, to his aged aunt, Mrs. Mont- 
gomery : — 

" I dined with the Marquis de Marbois, a few days 
before I left Paris. He could hardly recover his sur- 
prise upon my presenting him a letter from the widow 
of General Montgomery. He begged me to assure you 
of his gratitude for your recollection of him, and added 
that he would himself express to you his feelings by the 
first opportunity that offered. I must not omit men- 
tioning, either, the compliment the Count de la Forest 
paid you. Hearing I was from New York, he accosted 
me in a salon where we both spent the evening, and 
made many inquiries respecting his old acquaintances, 
and. among others, asked whether I knew Mrs. Mont- 
gomery, describing her as ' line femme de heaucoup d'eS' 
prU et d'agremens.' Do not accuse me of wishing to 
flatter you. I but repeat the truth." 

The young man remained in Europe only till the au- 
tumn, with varying hopes as to his health. He then 
wrote to his father that he had concluded to hasten home; 
but he did not reveal the fact that the object of the sud- 
den resolution was to die in his father's arms. He sailed 
from Marseilles on the 10th of November, in a vessel 
bound to New Orleans. His letter reached Mr. Liv- 
ingston but a few days before the ship arrived. These 
were days of intense anxiety to the father. About the 
middle of January, 1822, the vessel appeared, and he 
hastened on board, in order to see what change had 
come upon the beloved features. But those features 
he was never again to behold. Lewis, the victim of an 
ultimately rapid consumption, had been, on the 26th of 
December, buried by strangers, at sea. 



254f LIFE OF EDWARD LIVINGSTON. 

It was many years after suffering this stroke before 
Mr. Livingston could bring himself to the point of un- 
locking the writing-desk in which the youth had left 
his papers, and which his hands had last locked. His 
name, it is said, never afterwards passed the father's 
lips. The letters of the latter once or twice alluded to 
the subject of his loss ; but it was not in Livingston's na- 
ture to break silence over the more acute pangs of the 
heart. 

The withering traces of this grief were long visible to 
all who saw him, and his family believed that its effects 
might have been more disastrous still, but for the impetus 
under which he was at the time moving towards the com- 
pletion of his great work which was destined in a few 
years to introduce him among the brotherhood of phil- 
anthropic thinkers of all countries in his own time, and 
perhaps to enroll his name on the list of the recognized 
apostles of human progress in different ages. Of this 
work, as well as the circumstances and manner of its 
production, I shall next try to present an accurate and 
succinct outline. 



CHAPTER XII. 

THE LIVINGSTON CODE. 

Mr. Livingston's Commission by the Legislature to prepare a Penal 
Code — His Qualifications and Zeal — Report of his Plan — Approbation 
of the latter by the Legislature — Completion of the Code — Its Destruc- 
tion by Fire, and Restoration — State of Criminal Laws in Louisiana in 
1820 — Original Features of the Livingston Code — Proposal to abolish 
the Punishment of Death — Details of the Proposed System — Explanatory 
Reports to the Legislature — Neglect of the latter to act upon the Re- 
ported Code — Effects of its Publication. 

TN February, 1821, Edward Livingston was elected by 
■*- joint ballot of the General Assembly of Louisiana to re- 
vise the entire system of criminal law of the State. For 
such a task no man ever had more complete or more 
comprehensive qualifications. He was fifty-seven years 
of age, and in the prime of intellectual strength. He 
had studied profoundly, and during most of his life, the 
Roman, the English, the French, and the Spanish laws. 
He was master of all the languages in which those laws 
are written and treated. The variety of his professional 
business had made him as familiar with the practical 
working as with the theory of each system. He had 
had some judicial experience in a court of both civil and 
criminal jurisdiction. His miscellaneous acquirements 
and general culture were such, in extent and variety, as 
have rarely, if ever, been excelled by any man of ordi- 
nary and active pursuits. He had an unusual knowledge 
of men in every condition, and of all characters, and es- 
pecially a thorough acquaintance with the peculiar people 
directly interested. Philanthropy was the basis of his 



Q^Q LIFE OF EDWARD LIVINGSTON. 

own nature, and a keen interest in the affairs of human- 
ity and society had given direction to much of his read- 
ing and reflection. 

Thus prepared, he undertook the work with prodig- 
ious energy and enthusiasm. Indeed, the whole scheme 
was his own, conceived deliberately in his mind alone, 
matured there in outline before being broached to the 
public, and finally heralded by legislation conducted 
under his direction. The initial act, passed in 1820, 
was undoubtedly framed, word for word, by him. The 
entire proposed reform, and the grounds of it, are there 
correctly sketched in a short preamble and a single sec- 
tion. The former recites the " primary importance, in 
every well-regulated State, that the code of criminal law 
should be founded on one principle, namely, the preven- 
tion of crime ; that all offences should be explicitly and 
clearly defined, in language generally understood ; that 
punishments should be proportioned to offences ; that the 
rules of evidence should be ascertained as applicable to 
each offence ; that the mode of procedure should be sim- 
ple, and the duty of magistrates, executive officers, and 
individuals assisting them, should be pointed out by law ; 
and that, in many or all of these points, the system of 
criminal law by which Louisiana was then governed was 
defective." The latter enacts that " a person learned in 
the law shall be appointed by the Senate and House of 
Representatives at this session, whose duty it shall be to 
prepare and present to the next General Assembly, for 
its consideration, a code of criminal law, in both the 
French and English languages, designating all criminal 
offences punishable by law ; defining the same in clear 
and explicit terms ; designating the punishment to be 
inflicted on each ; laying down ,the rules of evidence on 
trials ; directing the whole mode of procedure, and point- 



THE LIVINGSTON CODE. gW 

ing" out the duties of judicial and executive officers in the 
performance of tlieir functions under it." This was an 
uncommonly concise and exact way of laying out a vast 
undertaking, and could only have been the work of the 
man who had made himself ready for the task. 

Mr. Livingston reported to the legislature, at its next 
session, his whole plan. He had, in the mean time, writ- 
ten to the Governors, and to various officers and distin- 
guished men of all the other States, to the principal foreign 
ministers of the General Government, and to many pub- 
licists in different countries, asking for practical informa- 
tion, to be used in shaping the details of the work. His 
success in eliciting answers had not been encouraging, 
but he felt no disposition to procrastinate any part of the 
labor. 

This report goes over the entire ground covered by 
the system of penal law, as afterwards perfected and sub- 
mitted. From the plan there were none but formal de- 
partures in the execution. 

The legislature promptly passed resolutions approving 
the report, and urging the author to prosecute his work 
according to the plan. Under this sanction he proceeded, 
and, two years later, was ready to submit, for legislative 
action, the complete product of his studies, — a system 
of penal law, divided into codes, books, chapters, sections, 
and articles, accompanied by several introductory essays, 
setting forth copious, exhaustive, and graphic expositions 
of every part. 

At this important point he met with a disaster well 
calculated to put an end to his enterprise and extinguish 
his ambition. He had given the final, lingering touches 
to the draught of his work. An engrossed copy, for the 
printer, had been made. One night he sat up late to 
finish the task of comparing the two papers. That task 



33 



258 LIFE OF EDWARD LIVINGSTON. 

was done, and with it the great mental undertaking. 
Reheved of a long-borne and heavy, though not dis- 
tasteful burden, he went to sleep. An alarm of fire 
awoke him. He rushed to the room where he had left 
his papers. Both draught and copy were reduced to ashes. 
The next morning he sat down to the work of reproduc- 
ing the vanished structure. He was then sixty years 
of age. In two years more, the reproduction was com- 
plete, — a phoenix of what had been destroyed. 

In order to measure the importance of Livingston's 
project, it is necessary to look at the sources, the history, 
and the state — as he found them — of the criminal 
laws of Louisiana. 

Early in the last century, the French made some be- 
ginnings to settle the territory of Orleans, in pursuance 
of a plan to establish and fortify a chain of possessions 
from Canada to the mouth of the Mississippi River. But 
the ground was claimed by Spain, as being part of Flor- 
ida, by right of prior conquest and possession. There 
was no distinctness, however, in the boundaries or geog- 
raphy of the immense wilderness in the midst of which 
the territory lay. As a result of these circumstances, 
the settlement proceeded with accessions of citizens of 
France and Spain, and from the neighboring colonies 
of both nations. Definite government became necessary, 
and negotiations were had between the two crowns, which, 
in 1763, ended in mutual cessions of distinct regions, 
that of Orleans going to Spain. In 17^9, that power 
formally promulgated its whole system of laws as con- 
trolling the new province. Under those laws it re- 
mained when the country was retroceded to France. 
That transaction was not consummated until 1803, and 
then only provisionally and to enable Napoleon to deliver 
a title to the United States. The laws of Spain were 



THE LIVINGSTON CODE. 



259 



left unrepealed in the territory by the double transfer, it 
being " an established rule of national law that on the 
transfer or conquest of a country the municipal laws re- 
main in force until they are expressly changed by the 
new government." 

Congress passed an act of October 31, 1808, author- 
izing the President to take possession of the new prov- 
ince, and vesting in officers to be appointed by him the 
same military, civil, and judicial powers that were exer- 
cised under the Spanish government. The next year, 
another act established a government for the territory, 
extending to it the operation of certain laws of the United 
States, — such as those securing the trial by jury, and the 
writ of habeas corpus; but declaring that all laws in 
force in the Territory, at the passage of the act, and not 
inconsistent with it, should continue in force until altered, 
modified, or repealed by the legislature. The same pro- 
vision ^^•as repeated in the act of Congress of 1805, which 
gave the Territory another grade of government ; and 
when it ceased to be a Territory, in 1812, a like provi- 
sion went into the constitution of the new State. 

No further abrogation of the Spanish penal laws had 
in 1820 been enacted in Louisiana, except that the Ter- 
ritorial legislature had, in 1805, by law specified a lim- 
ited number of ordinary crimes and misdemeanors, and 
declared that the offences so enumerated should be con- 
strued and tried according to the common law of Eng- 
land. Of course, other offences were legally left for 
definition and punishment to the laws of Spain in force 
when she parted with the province. These laws had been 
the growth of ages, some of them of very dark ages. 
Many of them might be practically obsolete in Louisiana, 
because too cruel or too absurd to be executed there ; 
others, not so bad in themselves, might be disregarded 



260 LIFE OF EDWARD LIVINGSTON. 

by the courts and by public opinion, or might be unknown 
to either judges or people. Nevertheless, they remained 
strictly a part of the law of the State, — a useless and 
perhaps dangerous part. It is interesting to glance in 
review at some of these penal laws, lingering far from 
home, upon uncongenial soil, scarcely recognized, yet not 
formally put away. 

One of the most curious heads of these unrepealed laws 
was that called Enfamamiento, fofming a title in the 
seventh book of the Partidas. By its provisions, infamy 
was denounced indiscriminately upon persons of various 
classes, including children of illegal marriages, suitors or 
advocates incurring rebuke, whether just or not, from a 
judge in court, slanderers, unfaithful depositaries, widows 
marrying before the expiration of a year's mourning, their 
too impatient new husbands, procurers, comedians, mounte- 
banks, usurers, gamblers, and buffoons, — an extraordi- 
nary jumble, truly, for the Anglo-Saxon mind to contem- 
plate. This kind of infamy attached, not upon convic- 
tion only, but from the fact. It worked exclusion from 
office, and incapacity to testify in a court of justice. These 
disabilities had been but partially remedied by any express 
enactment in the constitution or statutes of Louisiana. 

Nor had legislation touched those provisions of the 
Partidas which, under the head of falsedades^ or crimen 
falsi^ made it criminal and punishable with banishment 
and confiscation of all property for an advocate to be- 
tray the secrets of his client, or designedly to cite the 
law ftilsely ; for a notary to deny the deposit of any 
writing, or to hide or deliver it to another, or to read 
or publish it, if deposited with him to be kept secret ; 
for a judge knowingly to give judgment contrary to law; 
for any person to say mass without ordination ; for any 
one to change his name by taking one more honorable ; 



THE LIVINGSTON CODE. QQi 

or for a woman to feign maternity, and produce a coun- 
terfeit heir. 

The industry of this old code had, under the title of 
homicide, (des los omedllos,) provided for punishing-, in 
cases of fatal results, the malpractice of quacks, and the 
blunders of physicians, surgeons, or apothecaries, as well 
as the administering of drugs, either for the destruction 
of the unborn, or for the opposite purpose of overcoming 
barrenness. 

Defamation {desJionras) was a very comprehensive title 
of the Partidas. It included all acts designed to degrade 
or dishonor another, whether by writing, printing, speech, 
gesture, assault and battery, overstrained gallantry, or 
inflicting smoke upon a neighbor overhead, or water 
upon a neighbor nearer the ground. 

By the same code, not only were adulterers, seducers, 
and their agents punishable with stripes and confinement, 
banishment, confiscation, or death, but their offences were 
subjected to some peculiarly severe definitions and to 
some specially hard rules of evidence. And these enact- 
ments had not been repealed in Spain or in Louisiana. 

There were even left some remains of those parts of 
the old system which denounced bloody penalties upon 
the crimes of Judaism, heresy, and blasphemy, and which 
regulated torture, some vestiges of the pillory, of public 
whipping, and of burning to death ; and some horrors, 
in the way of punishments strictly legal, had been, un- 
der the Territorial government, actually imposed in some 
parishes of the province, by magistrates of an antiqua- 
rian turn, and disposed 

" To awaken all the enrolled penalties 
Which had, like unscour'd armor, hung by the wall, 
And none ot them been worn," * 

* This use of the passage here ingston's communications to the 
quoted I borrow from one of Liv- legislature. In this instance, as in 



QQ2 LIFE OF EDWARD LIVINGSTON. 

revealinof to the citizens of the State the common (langer 
that judges might he found, at any time, and when such 
an evil would be least anticipated, determined 

" To put some drowsy and neglected act 
Freshly on " 

such as should come within the range of their prejudice, 
caprice, or resentment. 

To sweep away all this rubbish, with the system to 
which it belonged, or, in retaining any portion of the 
latter, to reduce that portion to certainty and intelligi- 
bility, was the first object of the Livingston Code. On 
this subject, the following is part of the language ad- 
dressed by the author to the law-makers: — 

" Be assured, legislators, of this truth, that there can be 
no law of which the existence is a matter of indifference. 
It must remain in your code for good or for evil : for 
good, if it be a wise law, and carried into effect ; for evil, 
whether it be good or bad, if it remain unexecuted. In 
the one case, the people are taught the dangerous lesson, 
that the best precepts may be disregarded with impunity ; 
in the other, they are subjected, when the danger is least 
apprehended, to the unjust operation of a forgotten law. 
Indeed, there is scarcely a greater reproach to the juris- 
prudence of a nation than the existence of obsolete laws ; 
that is to say, laws that are none, — laws that are no rule 
to guide our actions, because they are unknown to, or 
forgotten by, those upon whom they are to operate, but 
which may yet be used to punish them for their contraven- 
tion, because they are known and remembered by those 
who are empowered to enforce them, whenever the malice 

many others, he seems to have quot- the substance of a passage, and to 

ed from memory, and he did not ex- attend little to its precise form, as 

actly follow his author. Indeed, in if he intended to give the quoted au- 

quotations of this sort he often, if thor credit for his thought rather 

not habitually, did the same thing, than for his language, 
appearing to content himself with 



THE LIVINGSTON CODE. QQQ 

of a prosecutor, or the ignorance, corruption, or party 
feeling of a judge, may induce him to draw the rusty 
sword from its scabbard Hear what the wise Ba- 
con says on this subject, 'The prophet says, it shall rain 
snares upon them; but of all snares, the snares of the 
law are the worst, especially of the penal law ; when they 
have become useless, either by the accumulation of their 
number, or by the lapse of time, they are not a light to 
guide our steps, but a net to entangle them ; ' and ' Here 
is a further inconvenience of obsolete penal laws; for 
this brings on a gangrene, neglect, and habit of disobe- 
dience upon other wholesome laws, that are fit to be 
continued in practice and execution, so that our laws en- 
dure the torment of Mezentius, the living die in the arms 
of the dead.' " 

But the Spanish system did not furnish all the rust 
and rubbish which Livingston aimed to remove. There 
was much in the common law of England — laconically 
introduced and referred to, for definition, evidence, and 
procedure in certain cases, as we have seen, by the act 
of 1805 — which he desired to lop away from the juris- 
prudence of the State, as well as much that he wished, 
while retaining it, to clothe with perspicuity, simplicity, 
and certainty. He reviewed that system, — with which, 
at the expense of long study and practice, he was pro- 
foundly familiar, — without reverence on the one hand, 
and on the other without prejudice, but in the spirit of 
a reformer as radical as enlightened. He wished the 
new State to be rid of the vagueness, mystery, and 
dependence on uncertain oracles, which centuries have 
piled upon " the perfection of reason," and to receive, 
in their place, precise, plain, and full regulations suffi- 
cient for all cases, gathered in a single book, where 
everything good in each of the previous systems might 



2Q4f LIFE OF EDWARD LIVINGSTON. 

be caught and preserved in a shape to be understood, and 
where written law should, so far as possible, supersede 
precedent, custonn, and tradition. His scheme, in part, 
was, instead of leaving the laws of crime and punish- 
ment what they had been, a mystery to lawyers and 
judges, to bring them directly to the knowledge and 
comprehension of the people. 

The conscientious devotion of Livingston to this lead- 
ing idea is illustrated by the painstaking way he adopted 
of escaping ambiguities of language in the enactments 
he proposed. This was to submit the entire code, after 
completion, to men not versed in the phraseology of the 
law, and to mark for explanation every word not fully 
or accurately understood by them. The words so marked 
were, in the body of the work, always printed in a pecu- 
liar character, to show that they were the subject of ex- 
planation in a separate place, the Book of Definitions ; 
and each word thus marked received all necessaiy at- 
tention in that book. 

The clearness and certainty for which Livingston 
strove went beyond the outward form to the inner sub- 
stance. He proposed enactments expressly abolishing all 
constructive offences, and all distinctions between strict 
and liberal constructions of penal statutes ; forbidding 
every departure from the plain letter of the \Mitten law, 
and requiring the courts, on the trial of a criminal charge 
prosecuted under an ambiguous act, to acquit the accused, 
and immediately report the case to the legislature. 

One of the main directions in which he labored to have 
Louisiana lead the age was humanity. Remedial, as 
against vindictive laws, have had no abler and no more 
ardent advocate. Every part of his work shows this, 
but it is chiefly apparent in his efforts for the total abo- 
lition of the penalty of death, and in his plans for the 



THE LIVINGSTON CODE. OQ^ 

reformation of offenders. By the former, he added large- 
ly to tlie then existing stock of known facts and argu- 
ments bearing upon the subject ; and in the latter, he 
presented views entirely original. The penalty of death 
had not been done away by any of the United States, 
then twenty-four in number ; and, though the prison 
systems of several of the States were in advance of that 
of Louisiana, none of them had realized the prominent 
ideas of Livingston. 

The catholicity of the reformer's spirit, and the prac- 
tical nature of his philanthropy, are visible throughout 
his treatment of these topics. With him, the impor- 
tance of the proposed changes did not rest upon any 
narrow doctrine or precise theory of penal law. He ex- 
amined with keen interest the several conflicting theories 
concerning the authority for all punishment, but did not 
feel any necessity to commit himself unreservedly to 
either. Such questions as whether the right to punish 
criminals depends upon an implied contract between so- 
ciety and its members, or merely upon the ground of 
utility, or upon the principle of abstract justice alone, 
and whether the true object of exercising the right be 
solely to punish, or solely to reform, or both punishment 
and reformation, and in what degrees, gave him no 
trouble, because he held that, whatever discord in argu- 
ment these conflicting doctrines might lead through, yet 
they could not avoid harmony in conclusion. Li this 
way he dismissed the casuistry of the subject, which, 
after all, he believed had its origin rather in a confusion 
of terms than in any real foundation for dispute. 

The grounds upon \\ hicli he urged the abolition of the 
penalty of death, though humane in substance, were not 
those of a dogmatist or sentimentalist. He looked upon 
the true interests of society as paramount to all consid- 

34 



266 LIFE OF EDWARD LIVINGSTON. 

eratioiis in the criminal's behalf. He offered a substi- 
tute which, whatever might prove its effect as a public 
example, would certainly not have held out, to the or- 
dinary transgressor, an alternative much less terrible 
than death. It was imprisonment for life in a solitary 
cell, to be painted black without and within, and bearing 
a conspicuous outer inscription, in distinct white letters, 
setting forth the culprit's name and his offence, with its 
circumstances, and proceeding with a fearfully graphic 
description of his doom: — "His food is bread of the 

COARSEST KIND ; HIS DRINK IS WATER MINGLED WITH HIS 
tears; he IS DEAD TO THE WORLD; THIS CELL IS HIS 
GRAVE ; HIS EXISTENCE IS PROLONGED THAT HE MAY 
REMEMBER HIS CRIME, AND REPENT IT, AND THAT THE 
CONTINUANCE OF HIS PUNISHMENT MAY DETER OTHERS 
FROM THE INDULGENCE OF HATRED, AVARICE, SENSUAL- 
ITY, AND THE PASSIONS WHICH LEAD TO THE CRIME HE 
HAS COMMITTED. WhEN THE AlMIGHTY, IN HIS DUE 
TIME, SHALL EXERCISE TOWARDS HIM THAT DISPENSA- 
TION WHICH HE HIMSELF ARROGANTLY AND WICKEDLY 
USURPED TOWARDS ANOTHER, HIS BODY IS TO BE DIS- 
SECTED, AND HIS SOUL WILL ABIDE THAT JUDGMENT 
WHICH DIVINE JUSTICE SHALL DECREE." 

The most important, as well as the most original feat- 
ure of Livingston's work was his proposal to enlarge 
the scope of penal legislation so as to take in, not only 
such measures as look to the punishment of crime after 
it is committed, but also such as tend, in any way, how- 
ever remotely, to preclude its commission, — to bring 
under one central direction, crime, vagrancy, mendicity, 
and all forms of pauperism, — in short, to blend into a 
single system the whole machinery of poor-house, work- 
liouse, and bridewell. In the universal separation and 
independence of these establishments he thouglit he dis- 



THE LIVINGSTON CODE. 



!267 



covered a chief cause of the failure in the proper efficiency 
and value of each one. The administrators of penal 
laws have always been restricted to the protection of so- 
ciety against crime only by waiting, watching for, and 
then punishing its commission, while the administrators 
of poor-laws have been limited to the business of feeding 
without controlling their subjects ; from which it has 
resulted that one of these departments has proved a pre- 
paratory school for the other, and, between the two, the 
children of poverty and crime have been bandied for- 
ward and backward, without due benefit either to them- 
selves or to the community. The ranks of those who 
commit the more positive crimes derive almost all their re- 
cruits from those who cannot or who will not honestly toil, 
and those who, though willing to labor, yet lack employ- 
ment. He held that society is bound to support such 
of its members as are incapable of supporting them- 
selves, and has a corresponding right to test the genuine- 
ness of that incapacity, — a right which cannot be exer- 
cised without at the same time exercising a strict tutelage 
and thorough control over all who either are incapable 
of self-support or pretend to be so. A true system of 
penal law, therefore, in his view, should deal with the 
entire subject, and should confer upon its ministers a 
pervading and organized authority over the evil from 
top to foundation. A little vigor at the beginning might 
save a good deal of rigor in the end. Under such a 
system, in full operation, beggars and vagrants could 
not roam abroad, plying their vocations. The law would 
immediately take custody of all such, and assign to each 
his place. Those unable to work would receive simple 
support. Those able and willing to perform labor, but 
unsuccessful in getting it, would be furnished with tem- 
porary occupation and subsistence. Those con)petent, 



£68 LIFE OF EDWARD LIVINGSTON. 

but unwilling to earn their livelihood, would do so by- 
compulsion. All these would be classified and separated 
in such a way as to guard, as far as practicable, against 
social contamination, an evil against which Livingston took 
constant pains to provide in every part of his system. 
Illegal idleness would not then possess the charms which 
freer systems impart to it, and would, of course, be 
shunned by many whom it now attracts. Under such 
a code, whether the agents of the pauper establishment 
would have more business or not, the criminal courts 
would certainly have less. 

The machinery proposed for the working of the sys- 
tem comprehended : 

A House of Detention ; 

A Penitentiary ; 

A House of Refuge and Industry ; and 

A School of Reform ; 
all under the superintendence and conduct of one Board 
of Inspectors. The House of Detention was designed 
as a place of simple imprisonment, with two separate de- 
partments: the first to hold only misdemeanants, and per- 
sons committed for trial upon minor charges or as wit- 
nesses ; the second, those committed for crimes of the 
higher grades. Its regulations were intended to dis- 
criminate between culprits and witnesses, and to allevi- 
ate to the latter, as far as practicable, the discomfort and 
disgrace of confinement. 

The Penitentiary was a subject of Livingston's most 
intense study. He obtained copious information and sta- 
tistics from the other twenty-three States, as well as from 
Europe, and minutely examined and reviewed the whole 
history of the systems of Massachusetts, New York, and 
Peinisylvauia. He approved of no known system, though 
he acknowledged the value of parts of several. His con- 



THE LIVINGSTON CODE. £69 

elusion was, that, under the best scheme of penal juris- 
prudence to be devised, the inflexible sentence of the 
law upon every convict of a penitentiary offence should 
be confinement in a solitary cell, with sufficient whole- 
some but coarse food, but without occupation or any hu- 
man attention, except needful ministration to physical 
wants and private religious instruction. And this dread- 
ful penalty should be literally enforced against all who 
are too obstinately depraved to accept, after a time, cer- 
tain mitigations on condition of good behavior. But to 
those who might learn to crave occupation, improved 
diet, books, and some taste of society, and who at the 
same time might manifest a willingness to earn these 
kinds of alleviation, the law should gradually unfold the 
following inducements to perseverance in labor, obedience, 
moral conduct, and desire of reform, namely : — 

1. A better diet. 

2. Partial relief from solitude, and the means of edu- 
cation by the visits and lessons of a teacher of the prison. 

3. Permission to read books of general instruction. 

4*. The privilege of receiving the visits of friends or 
relations at proper periods. 

5. Admission into a class for instruction, after a period 
of good conduct that shall evince a sincere desire to re- 
form. 

6. The privilege, after a long probation, of laboring 
in society. 

7. A proportion of the proceeds of his labor on his 
discharge ; and 

8. A certificate of good conduct, industry, and skill in 
the trade he has learned or practised in prison, which 
may enable him to regain the confidence of society. 
These advantages, to be gained by good conduct, should 
be liable to suspension and forfeiture for idleness or ir- 



Q>JO LIFE OF EDWARD LIVINGSTON. 

regularity, and ought to be dispensed only in accordance 
with severe and unbending regulations. 

It was Livingston's earnest belief that such a gradual 
education of the head and the heart of the confined crim- 
inal, though it could not be expected to produce uniform 
reformation, would yet cause most convicts to graduate 
from the penitentiary with softened and improved charac- 
ters, and often work a total reclamation to industry and 
virtue. These opinions, while he disclaimed any visions 
of millennial results from any possible system, he pressed 
upon the legislature with fervor and eloquence. The 
following paragraph is from his introductory report on 
this subject : — 

" Let it not be said that this is a theory too refined to 
be adapted to depraved and degraded convicts. Con- 
victs are men. The most depraved and degraded are 
men; their minds are moved by the same springs that 
give activity to those of others ; they avoid pain with 
the same care, and pursue pleasure with the same avid- 
ity, that actuate their fellow-mortals. It is the false di- 
rection only of these great motives that produces the 
criminal actions which they prompt. To turn them into 
a course that will promote the true happiness of the in- 
dividual, by making them cease to injure that of society, 
should be the great object of penal jurisprudence. The 
error, it appears to me, lies in considering them as beings 
of a nature so inferior as to be incapable of elevation, and 
so bad as to make any amelioration impossible ; but crime 
is the effect principally of intemperance, idleness, igno- 
rance, vicious associations, irreligion, and poverty, — not 
of any defective natural organization ; and the laws which 
permit the unrestrained and continual exercise of these 
causes are themselves the sources of those excesses which 
legislators, to cover their own inattention or indolence 



THE LIVINGSTON CODE. QJl 

or ignorance, impiously and falsely ascribe to the Su- 
preme Being, as if he had created man incapable of re- 
ceiving the impressions of good. Let us try the experi- 
ment, before we pronounce that even the degraded con- 
vict cannot be reclaimed. It has never yet been tried. 
Every plan hitherto oifered is manifestly defective, be- 
cause none has contemplated a complete system, and 
partial remedies never can succeed. It would be a pre- 
sumption, of which the reporter's deep sense of his own 
incapacity renders him incapable, were he to say that what 
he offers is a perfect system, or to think that it will pro- 
duce all the effects which might be expected from a good 
one ; but he may be permitted, perhaps, to believe, that 
the principles on which it is founded are not discordant; 
that it has a unity of design, and embraces a greater com- 
bination of provisions, all tending to produce the same 
result, than any that has yet been practised. Whether 
these principles are correct, or the details proper to en- 
force them, the superior wisdom of the legislature must 
determine. But to think that the best plan which human 
sagacity could devise will produce reformation in every 
case, that there will not be numerous exceptions to its 
general effect, would be to indulge the visionary belief 
of a moral panacea, applicable to all vices and all crimes ; 
and although this would be quackery in legislation, as 
absurd as any that has appeared in medicine, yet, to say 
that there are no general rules by which reformation of 
the mind may be produced, is as great and fatal an error 
as to assert that there are in the healing art no useful 
rules for preserving the general health and bodily vigor 
of the patient." 

But Livingston perceived and felt the radical danger 
that all the reformation which might be achieved by the 
proposed discipline would speedily be done away, if no 



^•72 LIFE OF EDWARD LIVINGSTON. 

provision should be made to counteract the effect of the 
practical outlawry which attaches to the discharged con- 
vict, and prevents him from procuring honest employ- 
ment. To preclude the necessity of a relapse into evil 
courses, arising from inability to find virtuous society and 
lawful work, the doors of the more honorable side of the 
House of Refuge and Industry were to be opened to re- 
ceive the graduate of the penitentiary carrying out with 
him a certificate of good conduct. That establishment 
was to have two departments, one for voluntary, the 
other for forced labor. In the former, occupation with 
compensation was to be given to those able and desiring 
to earn their livelihood, but lacking employment. The 
latter was to be a receptacle of able-bodied beggars and 
wilful vagrants, and to it all such were to be consigned 
the moment of being detected in the practice of their vo- 
cations. Both classes of inmates were to receive not only 
the hospitable care of the establishment, but, on leaving it, 
credentials — if earned — attesting their good conduct. 

One other establishment — the School of Reform — 
would complete the proposed penitentiary system. This 
was designed to be the place of punishment of all con- 
victs sentenced while under eighteen years of age to any 
term of imprisonment less than for life, and for the con- 
finement of all vagrants committed under the same age. 
It was to contain separate divisions for the sexes, a sep- 
arate dormitory for each prisoner, courts or shops for 
the employment of the inmates, a school-room for each 
division, and an infirmary. Every inmate was to be 
taught some mechanic art, and either persuaded or 
forced to ply it industriously, with only certain inter- 
missions, appropriated to instruction, to meals, to relax- 
ation, and to rest. A competent teacher was to be a 
part of the establishment. The discipline was to be 



THE LIVINGSTON CODE. 



273 



persuasive, so far as j)ersuasion would serve, but coer- 
cive when required by the bad conduct of those 

" upon whose nature 
Nurture can never stick." 

The inmates of the School of Reform were to be dis- 
charged only on the expiration of their terms of service, 
or by apprenticeship, with these qualifications : that, not- 
withstanding the expiration of a term of service prescribed 
in a sentence, no discharge (except by apprenticeship) 
should take place of a male under twenty-one, nor of a 
female under nineteen years of age ; and that the dis- 
charge by apprenticeship should not be made except after 
two years' residence in the institution, and a certain pro- 
ficiency in elementary education, nor without a written 
recommendation of the apprentice, signed by the vt'arden 
and approved by the inspectors. 

The work of Livingston, in its final shape, was styled 
"A System of Penal Law," and was divided into a Code 
of Crimes and Punishments, a Code of Procedure, a 
Code of Evidence, and a Code of Reform and Prison 
Discipline, besides a Book of Definitions. Each of the 
codes was subdivided into titles, chapters, sections, and 
articles, with headings, distinguishing their subjects, so 
as to make easy the task of reference. And each code 
was prefaced with general provisions, in the form of en- 
actments, declaring the principles and purposes control- 
ling the legislature in promulgating the system. 

Every part of the work evinces the most elaborate at- 
tention to the cardinal objects of preserving a complete 
unity of design, of shunning ambiguity and mystery, of 
preventing, rather than avenging crime, and of letting 
-' mercy season justice." 

The several addresses, of Mr. Livingston to the legis- 
lature, in the form of separate introductions to his sys- 
35 



2J4f LIFE OF EDWARD LIVINGSTON. 

tern, and to each of the codes embraced in It, added to 
the first report of his plan, would fill several volumes like 
this. In all of them not a dull sentence can be found. 
Their uniform style is adapted to attract a popular inter- 
est, and, at the same time, to satisfy a critical taste. It 
makes no departures from dignity, and takes to itself no 
stilts. It deals in plentiful illustration, and even orna- 
ment, but abounds in directness and plain force. It never 
lacks the strong flow of a full stream. These produc- 
tions, if their author had left no other, would demonstrate 
that America has not produced a more elegant, more 
correct, or more forcible writer of the English language 
than Edward Livingston. 

The legislature of Louisiana has not acted upon this 
system of law, prepared by its authority, upon principles 
stamped with its express sanction. The progress of the 
work brought out a good deal of opposition, conservative, 
economical, disputatious, or pragmatical. All this would, 
possibly, — though this is matter of much doubt, — have 
yielded before the author's personal influence, if he had 
remained at home ; but his destiny took him to Wash- 
ington, and invited him to a second political career ; he 
accepted the call, and ceased practically to reside in 
Louisiana. 

But his performance did not meet the same neglect 
from the world at large. Its publication brought him im- 
mediate and wide fame. Only an eminent American law- 
yer and politician before, he now took secure rank among 
the philosophers and reformers of the first grade in all 
civilized countries. Many of his separate recommenda- 
tions have been adopted by various legislatures, not only 
of the United 'States, but of other nations, both Ameri- 
can and European. But as a system, upon the impor- 
tance of whose pervading unity and central vigor he placed 



THE LIVINGSTON CODE. 



Q75 



such earnest stress, it has yet to be tried by some enter- 
prising government, desiring beneficent progress, and 
willino- to lead the world in the march of reform. Of 
some kind of advancement in penal legislation there is 
still everywhere the sorest need. A great deal of bar- 
barism characterizes the old and tenacious abuses which 
cling to the administration of penal justice : in the blind 
adherence to arbitrary technical rules ; in the reliance upon 
uncertain precedents ; in the ferocity of some punishments, 
and the want of discrimination among others ; in the de- 
tention of witnesses ; and in the promiscuous confinement 
of the young and the old, the tender and the hardened, 
the innocent and the guilty. If, in the progress of the 
world, even a partial remedy for these chronic abuses 
shall be found in some system substantially like that of 
Livingston, his name will live to be historically and per- 
manently associated with the names of Bacon, of Montes- 
quieu, of Beccaria, and of Bentham. 



CHAPTER XIII. 
THE REPUTATION OF THE CODE. 

TF personal ambition had been Livingston's principal 
motive, in the patient studies and labor by vvhich he 
produced his system of penal law, his reward would have 
been as ample as it was prompt. The publication of his 
plan gave immediate celebrity to his name in America 
and in Europe. It was reprinted in England,* by a 
stranger to the author, Dr. Southwood Smith, and at 
Paris, in the French version of Davezac,"!* elaborately 
edited by the eminent Taillandier. German reviewers 
reproduced it almost in full in their notices. The " West- 
minster Review " closed an article upon the Loudon edi- 
tion with the following paragraph : — 

" We cannot conclude this notice of his labors with- 

* Project of a Neiv Penal Code, was entirely unacquainted with its 

etc., etc. London, 1824. sounds, and never learned to compre- 

+ As was mentioned in the pre- hend the simplest conversation in 
ceding chapter, the legislature of that tongue. It was chiefly through 
Louisiana required that the projected this version that the code and Mr. 
code should be prepared and present- Livingston's various explanatory re- 
ed in both the French and English ports became known upon the conti- 
languages, a requisition which was nent of Europe. The French crit- 
fulfilled. The French version was ics commended the general purity of 
a translation from the English of Liv- its style, and pointed out only three 
ingston, by M. Jules Davezac, an or four instances of what they might 
uncle of Mrs. Livingston, a learned have termed " Americanisms," — 
man, and president of the first college the use of words in senses to which 
established at New Orleans. In this in France they were not applied, as 
work the translator evinced a singu- " commission" for '■'■perpetration" 
larly exact comprehension of his au- " acquit,'''' for " accomplisscment,'''' 
thor's meaning, even to minute and and " instiguer,^"" for " exciter.^'' 
technical particulars. What made With these reservations, the com- 
this very remarkable was the fact that position was pronounced to be a mar- 
M. Davezac had acquired the Eng- vel for a production coming from 
lish as one acquires a dead language, the Western wilderness. 



THE REPUTATION OF THE CODE. 



277 



out joining our feeble voice to that of the legislative as- 
sembly for which he is preparing this code, and earnestly- 
soliciting Mr. Livingston to prosecute his work in the 
spirit of this report. In England, the eyes of its most 
enlightened philosophers, of its best statesmen, and of its 
most devoted philanthropists will be fixed upon him ; and 
in his own country, his name will be had ' in everlasting 
remembrance,' venerated and loved. He is one of those 
extraordinary individuals whom nature has gifted with 
the power, and whom circumstances have afforded the op- 
portunity, of shedding true glory and conferring lasting 
happiness on his country, and of identifying his own 
name with the freest and most noble and most perfect 
institutions." * 

During- the years in which Mr. Livingston was en- 
gaged in twice filling up the body of the work of which 
the plan presented to the legislature was an outline, his 
opinions upon minor questions of criminal legislation 
were looked for and published, as soon as known, by 
the most prominent writers upon jurisprudence, espe- 
cially in Germany and France, as the opinions of one 
of the foremost publicists of the world. 

When the work was at length completed and pub- 
lished, though neglected by the legislature of Louisiana, 
a very different reception awaited it from the general 
public, at home and abroad. The manner in which the 
task had been executed universally satisfied the high ex- 
pectations which had been formed and expressed after 
the publication of the plan. The name of Livingston 
was now become illustrious. Victor Hugo wrote to him, 
" You will be numbered among the men of this age 
who have deserved most and best of mankind." f Vil- 

* Westminster Revieiv for January, 1825. 
•f- Vide post, p. 405. 



278 



LIFE OF EDWARD LIVINGSTON. 



lemain declared that the proposed system of penal law 
was " a work without example from the hand of any 
one man." * Jeremy Bentham proposed that a measure 
should be introduced in Parliament to print the whole 
work for the use of the English nation. j* Taillandier 
wrote : " The moment approaches when the legislature 
of Louisiana will discuss the proposed codes, prepared 
with so much care by Mr. Livingston; we hope that his 
principles will be adopted, and that State endowed with 
the noblest body of penal laws which any nation has 
hitherto possessed." ^ 

It would be easy to multiply the quotation of similar 
expressions, by writers of the highest authority, illustra- 
tive of the reputation and influence of this unenacted 
code. But let it suffice to mention further the deliber- 
ate opinion, recently published, of an English author § 
most competent to pronounce such an opinion, that Liv- 
ingston is " the first legal genius of modern times." 

The new law-giver received every kind of evidence of 
the general appreciation in which his labors were held. 
From reviews and journals, and from the leading con- 
temporary writers upon jurisprudence, there was a strong 
current of exalted, almost unqualified praise. Many of 
the most prominent statesmen of the world wrote to him 
in terms of appreciative commendation. He received 
autograph letters upon the subject of his work from the 
Emperor of Russia and the King of Sweden. |j The 

* Vide post, p. 404. II The following are copies of these 

I Bentham" s JForks, edited by Bow- royal letters : — 

ring, vol. xi. p. •17. „ 1 r- ^ r n • 

r n Z7 7 X '7- . rrom the tmperor of Russia. 

X Ke'vue tncyclopedtque, torn. ^ -' 

xliv, pp. 214, 215. " J'ai ete, Monsieur, infiniment 

§ Dr. H. S. Maine, formerly Pro- sensible a la lettre que vous ni'avez 

fcssor of Civil Law in the Universi- ecrite. Si I'Empereur Alexandre 

ty of Cambridge, and author of the de glorieuse memoire vivoit encore, 

profound work on Ancient Law. s'il n'avait ^te tout a coup enleve a 

I'or the expression quoted in the text I'amour et aux esp^rances de la Rus- 

vidt Cambridge Essays, li ^6,^. 17, sie, il aurait, j'en suis siir, accueilli, 



THE REPUTATION OF THE CODE. 



279 



King- of the Netherlands sent him a gold medal, with 
a eulogistic inscription. The government of Guatemala 
translated one of his codes, — that of Reform and Prison 
Discipline, — and adopted it word for word.* In his 
honor, the same government gave to a new city and dis- 
trict, forming a part of its territory, the name of Liv- 
ingston. 

When the exiled Governor of Hungary, Louis Kossuth, 
released from the imprisonment at Kutaiyeh, was enjoying 
in this country the hospitable ovation which all classes 
accorded to him, he was entertained at a public dinner 
by the bar of the city of New York. In a speech which 
he then delivered he took occasion to express his views 

avec gratitude, I'important travail 
dont vous lui destiniez la commu- 
nication. Heritier de ses principes 
et de ses vues, penetre comme lui 
de la necessite d'assurer h ma patrie 
le bienfait d'un code de loix qui lui 
manque, je m'empresse de vous re- 
mercier et pour votre lettre et pour 
I'ouvrage qui I'accompagnoit. Un 
de mes premiers soins a ete d'attacher etes imposee est digne de votre phi 



exprime mes remerciemens et de 
I'une et de I'autre. La juste reputa- 
tion dont vous jouissez parmi vos 
compatriotes est partagee de tons 
ceux qui etudient vos ouvrages ; elle 
acquerra de nouveaux eloges chez 
nous par la communication que j'ai 
faite de votre cotie h notre coinite 
des loix. La tache que vous vous 



k ma personne et de placer en quelque 
sorte sous mes propres yeux la com- 
mission chargee d'achever I'ceuvre 
entreprise par I'Empereur Alexan- 
dre. Connaissant vos lumieres et 
votre instruction profonde, j'ai fait 
communiquer aussitot a cette com- 
mission les projets de code que vous 
m'avez transmis. Elle y trouvera, 
je n'en saurai douter, de judicieuses 
idecs, d'utiles materiaux, et c'est 
dans cette conviction que je vous 
ortVe ici, Monsieur, I'assurance de 
ma parfaite estime. 

" Nicolas. 

" MoscoTv, le 31 Aout, 1826. 

" M. Edouard Livingston." 

From the King of SToeden. 

" Monsieur Livingston : J'ai rccju 
la lettre que vous m'avez addressee 
ainsi que I'ouvrage sur la legisla- 
tion qu'clle m'annonce ; c'est avec 
une veritable satiotaction que je vous 



lanthropie et de vos profondes con- 
naissances. Elle doit etre appreciee 
par tous ceux qui voient dans la 
clarte et les principes genereux de 
la legislation une nouvelle garantie 
de I'ordre social et des droits de 
citoyen. Continuez, Monsieur, a 
remplir cette belle et honorable 
vocation ; la presqu'ile Scandenave 
y trouvera un motif de plus pour 
resserrer les liens de confiance et de 
bonne harmonic qui subsistent si 
heureusement entre elle et les Etats 
Unis du Nord de I'Amerique. 

" Je saisis avec plaisir cette occa- 
sion pour vous exprimer. Monsieur 
de Livingston, les sentimens avec les- 
quels je suis 

" Votre afFectionne 

*' Charles Jean. 

*' Christiana, le 11 Aout, 1832." 

* Cod i go de Reforma y Disciplina 
de las Prisiones. Guatemala, 1834. 



£80 LIFE OF EDWARD LIVINGSTON. 

upon the subject of codification, and began by saying- 
that America had "a great authority for codification, — 
Livingston." Many years before that, the name of the 
author of the " System of Penal Law for the State of 
Louisiana " had become one of three or four American 
names the best known and most respected in Europe. 

At home, though not one of our leading jurists or 
statesmen kept pace with Livingston's ideas, as promul- 
gated in his proposed code, and especially with his scheme 
for abolishing the penalty of death, he received from all 
sides clear proofs of a proud admiration in which he was 
held by the wisest and best of his countrymen. This sen- 
timent was expressed to him directly by many prominent 
men, including Kent, Story, Marshall, Madison, and even 
Jefferson. Chancellor Kent wrote to him often at this 
period, discussing at large, and with warm interest, many 
of the details of the new work. The following is an 
extract from one of these letters, dated in February, 
1826: — 

" I owe every obligation to you for your continued 
friendship, and my sense of your talents and learning 
has been constantly on the increase from I786 to this 
day. It is very likely I shall have some old-fashioned 
notions and prejudices hoary with age and inflexible from 
habit ; but I am determined to give you what I think, 
on the reading of all the work, and to deal out my praise 
and censure just as my judgment dictates. 

" In the mean time, however, and before the war has 
commenced, and while the chain of friendship remains 
unbroken, suffer me to enjoy the parting, lingering rays 
of an amicable intercourse, and to assure you," etc. 

And a later communication from the same hand con- 
tains the following paragraphs : — 

" Though I shall always be dissatisfied with any code 



THE REPUTATION OF THE CODE. ^31 

that strips the courts of their common-law powers over 
contempts, and ceases to be a wholesome terror to evil- 
minded dispositions by the total banishment of the axe, 
musket, or halter from its punishments, yet I admit the 
spirit of the age is against me, and I contentedly ac- 
quiesce. 

" You have done more in giving precision, specifica- 
tion, accuracy, and moderation to the system of crimes 
and punishments than any other legislator of the age, 
and your name will go down to posterity with distin- 
guished honor." 

But perhaps nothing can more strikingly illustrate the 
position which Livingston now held before the country 
and the world than the fact, that, at a time when his 
debt to the government remained wholly unpaid, and 
thus while the original cause of Jefferson's prejudice 
against him was still outstanding in all its force, — a 
cause which, in ordinary circumstances, would have in- 
creased its fruits, like accumulations of interest, — the 
latter, from his retirement at Monticello, closed a long 
letter to him, of which the whole will be given at a sub- 
sequent page, with the following assurance : — 

" Wishing anxiously that your great work may obtain 
compleat success, and become an example for the imita- 
tion and improvement of other States, I pray you to be 
assured of my unabated friendship and respect." 

And in the same letter the venerable ex-President said 
to his ancient friend, — long estranged, as we have seen, 
but now reconciled, as will presently appear, — "I have 
attended to so much of your work as has heretofore been 
laid before the public, and have looked with some attention 
also into what you have now sent me. It will certainly 
arrange your name with the sages of antiquity." 

36 



CHAPTER XIV. 

SIX YEARS IN THE HOUSE AGAIN. 

Election of Mr. Livingston to Congress — His Position in the House — 
Speech on Roads and Canals — Letters from Jefferson and Du Ponceau 

— Intimacy between the latter and Livingston — Letters to Du Ponceau 

— Completion of the Livingston Code — Destruction of the Draught — 
Energy and Fortitude of the Author — Industry in reproducing the Code — 
Letter from Webster — Speech on the Bill to amend the Judicial System, 
and on the Equality of Rights among the States — Vindication of Chan- 
cellor Livingston's Services in the Purchase of Louisiana — Close Atten- 
tion of Mr. Livingston to the Ordinary Business of Legislation — Payment 
of his Debt to the Government — Manners and Social Habits — General 
Jackson in the Senate — Growth of the Intimacy between him and Liv- 
ingston — A Letter from the General — Zealous Support of him for the 
Presidency by Livingston — Public Dinner and Speech at Harrisburg — 
Defeat of Livingston as Candidate for Reelection to a Fourth Term in the 
House of Representatives — His Election to the Senate. 

WHILE Livingston was intently occupied in his 
great work, his name was brought forward by 
his friends as a candidate for the post of Representative 
from the first district of Louisiana in the eighteenth Con- 
gress. To the member from the New Orleans district, 
especially if unanimously chosen, there belonged at Wash- 
ington about as much political weight as if he were one 
of the two members of the Senate from the same State. 
The election was in July, 1822, and as no opposition 
arose, and no rival candidate appeared, was unanimous. 
He was afterwards twice reelected ; so that he sat in the 
House of Representatives during six sessions, beginning 
with that which opened in December, 1823. Thus, after 
the lapse of nearly a quarter of a century, — an interval 



SIX YEARS IN THE HOUSE AGAIN. QS3 

of turmoil deeply colored by disappointment and afflic- 
tion, — he returned to the chamber in which his tri- 
umphs as a young statesman and Republican orator 
had been achieved. In a letter to his friend Du Pon- 
ceau he wrote : — 

" The unanimous voice of my fellow-citizens sends me 
to Congress, where I very much fear, however, I shall be 
of no use. So long retired from public affairs, I am an 
utter stranger to the politics of the day, and my old-fash- 
ioned Republican ideas, I fear, will find the less favor, be- 
cause, so far from being weakened by my age and ex- 
perience, they every day acquire new force." 

The position of Mr. Livingston in the House was now- 
one of the highest and truest dignity. His reputation 
was not only national, but was just becoming something 
more. He was past the ordinary ambition for oratorical 
display, but zealous in the discharge of all the duties of 
a member. He was steadily in his seat, ready to speak 
to all questions upon which he thought he could throw 
light, watchful of the special interests of Louisiana, and 
industrious in efforts to improve the Federal laws. Al- 
though such men as Randolph, Clay, and Webster were 
members of the House, and Van Buren and Benton were 
senators, he was looked upon as an acquisition of the 
first importance in the national legislature. And this 
in spite of the fact that his unhappy debt to the govern- 
ment was not yet paid, A striking proof of the univer- 
sality of the respect in which he was held is furnished by 
the following letter, which, a few months after taking his 
seat in the House, he received from the man at whose 
hands he had suffered the largest and most cruel injuries, 
— injuries which he had not only long and keenly felt, 
but had eloquently and strenuously denounced. Jeffer- 
son was now within two years of his end, retired, strait- 



284 LIFE OF EDWARD LIVINGSTON. 

ened in circumstances, and, as to active political influence, 
oflthe scene. 

" Superfluous lags the veteran on the stage." 

It was in these circumstances that Livingston, in the 
prime of his strength and with rising fortunes, revived 
and cherished towards his old adversary the sentiments 
of his youth, and paid him such attentions as this letter 
acknowledges. How different would have been the feel- 
ing and conduct of the average man of the world, — not 
to say, of the average Christian gentleman ! It is plain 
that if in this instance the resentment which a sense of 
injustice suffered commonly inspires had ever found a 
lodgment in his breast, no trace of it was left remaining 
there. 

*'■ Monticello, April 4, 1824. 

" Dear Sir : It was with great pleasure I learnt 
that the good people of New Orleans had restored you 
again to the councils of our country. I did not doubt 
the aid it would bring to the remains of our old school 
in Congress, in which your early labors had been so use- 
ful. You will find, I suppose, on revisiting our mari- 
time States, the names of things more changed than the 
things themselves ; that though our old opponents have 
given up their appellation, they have not, in assuming 
ours, abandoned their views ; and that they are as strong 
nearly as ever they were. These cares, however, are no 
longer mine. I resign myself cheerfully to the managers 
of the ship, and the more contentedly as I am near the 
end of my voyage. I have learnt to be less confident in 
the conclusions of human reason, and give more credit 
to the honesty of contrary opinions. The radical idea 
of the character of the constitution of our government 
which I have adopted as a key in cases of doubtful con- 
struction is, that the whole field of government is di- 



SIX YEARS IN THE HOUSE AGAIN. 285 

vided into two departments, Domestic and Foreign, (the 
States in tlieir mutual relations being of the latter) ; that 
the former department is reserved exclusively to the re- 
spective States within their own limits, and the latter as- 
signed to a separate set of functionaries, constituting what 
may be called the Foreign branch, which, instead of a fed- 
eral basis, is established as a distinct government quoad lioc^ 
acting, as the domestic branch does, on the citizens direct- 
ly and coercively ; that these departments have distinct 
directories, coordinate and equally independent and su- 
preme, each within its own sphere of action. Whenever 
a doubt arises to which of these branches a power belongs, 
I try it by this test. I recollect no cases where a ques- 
tion simply between citizens of the same State has been 
transferred to the Foreign department, except that of in- 
hibiting tenders but of metallic money and ex 'post facto 
legislation. The causes of these singularities are well 
remembered. 

" I thank you for the copy of your speech on the ques- 
tion of national improvement, which I have read with 
great pleasure, and recognize in it those powers of rea- 
soning and persuasion of which I had formerly seen from 
you so many proofs. Yet, in candor, I must say it has 
not removed, in my mind, all the difficulties of the ques- 
tion. And I should really be alarmed at a difference of 
opinion with you, and suspicious of my own, were it not 
that I have, as companions in sentiment, the Madisons, 
the Monroes, the Randolphs, the Macons, all good men 
and true, of primitive principles. In one sentiment of 
the speech I particularly concur: 'If we have a doubt 
relative to any power, we ought not to exercise it.' When 
we consider the extensive and deep-seated opposition to 
this assumption ; the conviction entertained by so many 
that this deduction of powers by elaborate construction 



OgQ LIFE OF EDWARD LIVINGSTON. 

prostrates the rights reserved to the States ; the difficul- 
ties with which it will rub along in the course of its ex- 
ercise ; that changes of majorities will be changing the 
system backwards and forwards, so that no undertaking 
under it will be safe ; that there is not a State in the 
Union which would not give the power willingly by way 
of amendment, with some little guard, perhaps, against 
abuse, — I cannot but think it would be the wisest course 
to ask an express grant of the power. A government 
held together by the bands of reason only, requires much 
compromise of opinion, that things, even salutary, should 
not be crammed down the throats of dissenting brethren, 
especially when they may be put into a form to be willingly 
swallowed, and that a great deal of indulgence is neces- 
sary to strengthen habits of harmony and fraternity. In 
such a case, it seems to me it would be safer and wiser 
to ask an express grant of the power. This would ren- 
der its exercise smooth and acceptable to all, and insure 
to it all the facilities which the States could contribute, to 
prevent that kind of abuse which all will fear, because 
all know it is so much practised in public bodies, I mean 
the bartering of votes. It would reconcile every one, if 
limited by the proviso that the federal proportion of each 
State should be expended within the State. With this 
single security against partiality and corrupt bargaining, 
I suppose there is not a State, perhaps not a man in the 
Union, who would not consent to add this to the powers 
of the General Government. But age has weaned me 
from questions of this kind. My delight is now in the 
passive occupation of reading; and it is with great reluc- 
tance I permit my mind ever to encounter subjects of 
difficult investigation. You have many years yet to 
come of vigorous activity, and I confidently trust they 
will be employed in cherishing every measure which may 



SIX YEARS IN THE HOUSE AGAIN. 



287 



foster our brotherly union, and perpetuate a constitution 
of g-overnnient destined to be the primitive and precious 
model of what is to change the condition of man over 
the globe. With this confidence equally strong in your 
powers and purposes, I pray you to accept the assurance 
of my cordial esteem and respect. 

" Tho. Jefferson." 

The speech referred to in the above letter elicited from 
others a warmer degree of commendation than the ven- 
erable ex-President had to bestow upon it. Du Ponceau, 
the publicist, between whom and Livingston there was 
a close and life-long intimacy, wrote to him from Phila- 
delphia : " I have this moment read in the ' National In- 
telligencer' your admirable speech on roads and canals. 
I have never seen such eloquence in a Congressional speech 
since I was born. I am delighted with it. I cannot 
tell you with what enthusiasm I dwell on every word 
that it contains. Could you not lend me your eloquence 
but for one week] I am now engaged in writing a dis- 
sertation on the nature and extent of the jurisdiction of 
the courts of the United States. But how can I write 
after you ? I wish I had you here to consult on my fool- 
ish performance. But that cannot be. I must invoke 
your spirit, and try to catch a corner of your mantle."* 

Du Ponceau was a friend whose head as well as whose 
heart Livingston always highly valued and greatly de- 
pended upon. He had been one of his counsel in the 
Batture affair, had superintended the publication of his 

* This speech, which the learned a constitutional right to make such - 
Du Ponceau thought a model of elo- roads and canals as are necessary and } 
quence, was a very elaborate dis- proper for the transportation of the j 
couTbC, couched in Mr. Livingston's mail, for the giving facility to mili- / 
best st\le, maintaining earnestly the tary operations, and to the corn- 
affirmative of the question, " Has mercial intercourse between the 
the government of the United States States ? " 



<288 LIFE OF EDWARD LIVINGSTON. 

final pamphlet on that subject, had had the paper sub- 
mitted to his literary judgment as well as professional 
approval, and had been freely relied upon for advice in 
various questions, including some of the most profound 
and difficult which Livingston encountered in the prepa- 
ration of his system of penal law. In May, 1821, the 
latter had written to his friend thus : — 

" Our correspondence is something like that of the 
hero of a fairy tale and the Genius that protects him: 
the talisman is never resorted to but when there is great 
need of assistance. Friendship has been the magic word 
between us hitherto, and, though I have never used it 
in vain, I have now another that will not fail to command 
the full exercise of your powers : it is public good. Both 
are combined in the request I make, that you will read 
the enclosed and let me have your advice and assistance 
in executing the task win'ch is there detailed. 

" I fear I have greatly overrated my powers in the 
undertaking ; but the die is now thrown, and I must 
execute it as well as I can. My present impression is 
strongly against the retention of the punishment of death. 
I think it a most inefficient punishment in any case ; it 
certainly has been found so in most. Is there good rea- 
son for retaining it in any ] Yet in all the States it is 
retained for murder. Is not this owing to a secret at- 
tachment to the fanciful lex talionis^ or, what is worse, 
to a vindictive spirit which the law should never indulge. 
Let me have your sentiments fully on this point, and on 
the utility, or rather the practicability, of reducing into a 
code all that ought to be enacted under the head of crim- 
inal law. 

" I shall, from time to time, rub the talisman, and call 
on my Genius for his aid in extricating me from the 
difficulties in which my imprudent undertaking has in- 



SIX YEARS IN THE HOUSE AGAIN. Qgg 

volved me. Remember that, in all the records of fairy- 
land, there is no instance of a refusal to obey the word 
of power." 

The following extract from a letter to Du Ponceau is a 
specific instance of Livingston's method in searching for 
light while endeavoring to frame a complete system of 
criminal law. The result of the particular discussion here 
elicited shows that he did not adopt the opinions of others 
without being well convinced of their soundness, and that 
his own judgment, aided by all the light he could get 
from other minds, was always his ultimate dependence 
in the conclusions he promulgated. The answer of Du 
Ponceau admitted the force of the suggestion as to the 
difficulty of framing wise laws for the punishment of acts 
contra honos mores^ but advised that the subject could not 
be safely passed wholly by, and that the French code fur- 
nished, in substance, the best provisions to be made on 
the subject. Nevertheless, after full reflection, Livingston 
adhered to his original impressions, — omitting from his 
system altogether the whole class of offences against 
decency, — and enforced his views on this point in his 
address to the legislature with perfect conviction and con- 
fidence. 

" I am in a difficulty, and, as it is one arising out of a 
question of jurisprudence, I know no one to whom I 
can apply for assistance with so sure a hope of relief as 
to you. 

" In the revision of my criminal code, I have now un- 
der consideration the chapter of offences against public 
morals. This is intended to comprehend all that class 
which the English jurists have vaguely designated as 
offences contra honos mores^ finding it much easier in 
this, as they do in many other cases, to give a Latin 
phrase that may mean anything, rather than a definition. 

37 



^90 LIFE OF EDWARD LIVINGSTON. 

" I have serious thoughts of omitting it altogether, and 
leavins;' the whole class of indecencies to the correction 
of public opinion. I have been led to this inclination of 
mind (for as yet I have formed no decision) from an ex- 
amination of the particular acts which in practice have 
been brought under the purview of this branch of crim- 
inal jurisprudence. In the absence of anything like prin- 
ciple or definition, I was obliged to have recourse not only 
to precedent, but to the books of precedents ; and they 
strongly reminded me of some forms which I have seen 
in Catholic church books, of questions which are to be 
put by the confessor to his penitent, in which every abom- 
ination that could enter into the imagination of a monk 
is detailed in order to keep the mind of a girl of fifteen 
free from pollution. Turn to any indictment of this kind 
in the books, for the publication of obscene prints or 
books, or for indecency of behavior, and you will find 
the innuendoes and the exposition of the offence infinitely 
more indecorous, more open violations of decency, than 
any of the works they are intended to punish and repress. 
The evidence must be of the same nature, and hundreds 
will hear the trial who would never have seen the book 
or the print. This evil is inevitable, if such acts are pun- 
ished by law. 

" There is another, of no less magnitude, arising from 
the difficulty of defining the offence. Use the general 
expression of the English law, and a fanatic judge, with 
a like-minded jury, will bring every harmless levity under 
the lash of the law. Sculpture and painting will be ban- 
ished for their nudities ; poetry, for the warmth of its 
descriptions ; and music, if it excites any forbidden passion, 
will scarcely escape. 

" On the whole, I am surrounded by difficulties. Help 
me to a definition that shall include what ought to be 



SIX YEARS IN THE HOUSE AGAIN. QQl 

punished, and not give room for the abuse I have pointed 
out. Let me know how I shall decently accuse and try 
a man for indecency; or else fortify me in my opinion 
of letting public opinion protect public morals." 

The calamity by which the manuscript of the Code, the 
product of years of intense labor, was annihilated during 
the night after its completion, has been already men- 
tioned. This happened in New York, at the house No. 66 
Broadway, where Livingston lodged with his family and 
worked durhig the recess of Congress. When he left 
Louisiana for Washington the task was nearly done, 
and required for its completion but a few months' appli- 
cation. The first, or long session of Congress continued 
till the end of May, 1824, and then Livingston devoted 
himself wholly to the work. On the 14th of November, 
of the same year, it was finished, and, as I have said, 
destroyed. He announced the misfortune to Du Ponceau 
— from whom he had lately borrowed a volume of Ba- 
con's Works — in the followingr terms: — 

" The night before last, I wrote you an apologetic 
letter, accounting for not having before that time thanked 
you for your letter and your book. My excuse lay before 
me, in four Codes : of Crimes and Punishments, of Crim- 
inal Procedure, of Prison Discipline, and of Evidence. 
This was about one o'clock ; 1 retired to rest, and in 
about three hours was waked by the cry of fire. It 
had broken out in my writing-room, and, before it was 
discovered, not a vestige of my work remained, except 
about fifty or sixty pages which were at the printer's, 
and a few very imperfect notes in another place. You 
may imagine, for you are an author, my dismay on per- 
ceiving the evidence of this calamity ; for circumstanced 
as I am, it is a real one. My habits for some years 
past, however, have fortunately inured me to labor, and 



ggg LIFE OF EDWARD LIVINGSTON. 

my whole life has to disappomtment and distress. I 
therefore bear it with more fortitude than I otherwise 
should, and, instead of repining", work all night and cor- 
rect the proof all day, to repair the loss and get the work 
ready by the time I had promised it to the legislature. 
In a preliminary discourse, which I intended as a kind 
of commentary on the text of the law, I had made sev- 
eral references to Bentham. Having the volumes be- 
fore me, I made no extracts ; and, the books being also 
burned, I am much at a loss, as I cannot find them in 
any library or book-store in this city. Will you do me 
the favor to buy, borrow, or beg them for me "? The 
works I allude to are the French editions, published by 
Dumont : 'Principles of Legislation,' 3 vols.; 'Theory 
of Punishments,' 2 vols. ; and 'Treatise of Judicial Proof.' 
Mr. Malenfant will be good enough, if you can procure 
them, to have them boxed and sent by the Union Trans- 
portation Line, which will convey them safe ; and if you 
can only borrow them, I will carefully bring them on 
with me when I come. Your little book escaped the 
flames, and I have saved your Bacon, though not my 
own. I make no apology for giving you this trouble, 
because I know you will not think it one." 

This fearful disaster did not ruffle the outward seren- 
ity of Livingston's demeanor in the least. But he had 
much to do to soothe his wife and daughter, who, having 
watched the progress of the work with a lively interest, 
were thrown by its sudden destruction into the keenest 
distress. 

Six days after the accident, he wrote again to Du 
Ponceau : — 

" I thank you most sincerely for your kind participa- 
tion in my calamity, for although I put the best face upon 
it, I cannot help feeling it as such. I have always found 



SIX YEARS IN THE HOUSE AGAIN. 



293 



occupation the best remedy for distress of every kind. 
The great difficulty I have found on those occasions was 
to rally the energies of the mind, so as to bring them to 
undertake it. Here, exertion was necessary not only to 
enable me to bear the misfortune, but to repair it ; and I 
therefore did not lose an hour. The very night after 
the accident I sat up until three o'clock, with a deter- 
mination to keep pace with my printer ; hitherto I have 
succeeded, and he , has, with what is already printed, copy 
for an hundred pages of the penal code. I find my rec- 
ollection strengthens by keeping the attention fixed on 
one subject, and that by the help of my loose notes, which 
serve as jalons, (have we any English word for this ?) 
I find my old route easier than I expected. Next week, 
about Saturday, I will send you the penal code ; but you 
cannot judge fairly of it without the other codes, each of 
wdiich elucidates and supplies deficiencies in the others. 
The part I shall find most difficult to replace is the pre- 
limiuary discourse, of which I have not a single note, and 
with which (I may confide it to your friendly ear) I was 
satisfied. A composition of that kind depends so much 
upon the feeling of the moment in which it is WTitten, 
the disposition that suggests not only the idea but the 
precise word that is proper to express it is so evanescent, 
(mine at least are,) that it will, I fear, be utterly impossi- 
ble for me to regain it. I thank you again for the pains 
you have taken to procure the books. The one you have 
been so fortunate as to get will be of great service to 
me. It is not the last edition, but I believe there is 
no material difference. The price is no consideration with 
me. I have seen the notice in the 'National Gazette.' 
It is, excepting the value it places on the work, precisely 
what it ought to be. I yesterday had a long conversation 
with Chancellor Kent ; he is in raptures with your book. 



294^ 



LIFE OF EDWARD LIVINGSTON. 



I have laid it by, that I may enjoy it unmixed with the 
alloy of my own productions, which at present engross 
my attention ; and, to confess the truth, I read just 
enough to convince me that I had engaged in a very 
presumptuous undertaking, and was afraid to read more, 
lest I should be forced to confess that it was an imprac- 
ticable one. I am not quite convinced of the truth of 
the proverb that tells of the glory of failing in a great 
attempt. The mortification is in proportion to the great- 
ness of the object we have endeavored to attain ; and if 
glory depends upon the opinion of others, that very sel- 
dom comes in to comfort the unfortunate man who has 
presumptuously miscalculated his forces." 

Those who have read the preliminary discourse above 
mentioned will be surprised to learn that it was the repro- 
duction of a performance with which its author had felt 
satisfied, and of which not a single note remained; and 
will wonder at the manner of its accomplishment, if not 
at the fact, that, under such disheartening circumstances, 
it was undertaken at all. 

In the preparation of his penal code, Livingston indus- 
triously sought aid from the opinions of all those whose 
judgment he respected. To a request which he made 
for the views of Jefierson, the latter, nearly at the close 
of his long and preeminently useful life, wrote the follow- 
ing response : — 

" Montlcello, March 25, 1825. 

" Dear Sir : I know how apt we are to consider 
those we knew long ago, and have not since seen, to be 
exactly still what they were when we knew them, and 
to have been stationary in body and mind, as they have 
been in our recollections. Have you not been under that 
illusion with respect to myself? When I had the pleas- 
ure of being a fellow-laborer with vou in the public ser- 



SIX YEARS IN THE HOUSE AGAIN. 295 

vice, age had ripened, but not yet impaired, whatever of 
mind I had at any time possessed ; but five-and-tvventy 
chilling winters have since rolled over my head, and 
whitened every hair of it. Worn down by time in bodily 
strength, unable to walk even into my garden without 
too much fatigue, I cannot doubt that the mind has also 
suffered its portion of decay. If reason and experience 
had not taught me this law of nature, my own conscious- 
ness is a sufficient monitor, and warns me to keep in mind 
the golden precept of Horace, — 

' Solve senescentem maturfe sanies equum, ne 
Peccet ad extremum ridendus.' 

I am not equal, dear Sir, to the task you have proposed 
to me. To examine a code of laws, newly reduced to 
system and text, to weigh their bearings on each other 
in all their parts, their harmony with reason and nature, 
and their adaptation to the habits and sentiments of those 
for whom they are prepared, and whom, in this case, I 
do not know, is a task far above what I am now, or 
perhaps ever was. I have attended to so much of your 
work as has been heretofore laid before the public, and 
have looked, with some attention, also, into what you 
have now sent me. It will certainly arrange your name 
with the sages of antiquity. Time and changes in the 
condition and constitution of society may require occa- 
sional and corresponding modifications. One single ob- 
ject, if your provision attains it, will entitle you to the 
endless gratitude of society, — that of restrahiing judges 
from usurping legislation ; and with no body of men is 
this restraint more wanting than with the judges of what 
is commonly called our General Government, but what 
I call our Foreign department. They are practising on 
the Constitution by inferences, analogies, and sophisms, 
as they would on an ordinary law ; they do not seem 



296 LIFE OF EDWARD LIVINGSTON. 

aware that it is not even a Constitution formed by a 
single authority, and subject to a single superintendence 
and control, but that it is a compact of many indepen- 
dent powers, every single one of which claims an equal 
right to understand it, and to require its observance. 
However strong the cord of compact may be, there is a 
point of tension at which it will break. A few such 
doctrinal decisions, as barefaced as that of the Cohens, 
happening to bear immediately on two or three of the 
large States, may induce them to join in arresting the 
march of government, and in arousing the co-States to 
pay some attention to what is passing, to bring back the 
compact to its original principles, or to modify it legit- 
imately by the express consent of the parties themselves, 
and not by the usurpation of their created agents. They 
imagine they can lead us into a consolidated government, 
while their road leads directly to its dissolution. This 
member of the government was at first considered as the 
most harmless and helpless of all its organs ; but it has 
proved that the power of declaring what the law is, ad 
liMtiim, by sapping and mining, slily and without alarm, 
the foundations of the Constitution, can do what open 
force would not dare to attempt. I have not observed 
whether, in your code, you have provided against caucus- 
ing judicial decisions, and for requiring judges to give 
their opinions seriatim^ every man for himself, with his 
reasons and authorities at large, to be entered of record 
in his own words. A regard for reputation and the 
judgment of the world may sometimes be felt where 
conscience is dormant, or indolence inexcitable. Experi- 
ence has proved that impeachment in our forms is com- 
pletely inefficient. 

" I am pleased with the style and diction of your laws; 
plain and intelligible as the ordinary writings of common 



SIX YEARS IN THE HOUSE AGAIN. %<m 

sense, I hope it will produce imitation. Of all countries 
on earth of which I have any knowledge, the style of the 
acts of the British Parliament is the most barbarous, un- 
couth, and unintelligible ; it can be understood by those 
alone who are in the daily habit of studying such tau- 
tologous, involved, and parenthetical jargon. Where they 
found their model I know not ; neither ancient nor mod- 
ern codes, nor even their own early statutes, furnish any 
such example; and, like faithful apes, we copy it faith- 
fully. 

" In declining the undertaking you so flatteringly pro- 
pose to me, I trust you will see but an approvable caution 
for the age of fourscore and two, to avoid exposing itself 
before the public. The misfortune of a weakened mind 
is an insensibility of its weakness. Seven years ago, in- 
deed, I embarked in an enterprise, the establisliment of 
an University, which placed me, and keeps me still, under 
the public eye ; the call was imperious, the necessity most 
urgent, and the hazard of titubation less by those seven 
years, than it now is. The institution has at length 
happily advanced to completion, and has started under 
auspices as favorable as I could expect. I hope it will 
prove a blessing to my own State, and not unuseful per- 
haps to some others. At all hazards, and secured by 
the aid of my able coadjutors, I shall continue, while 
I am in being, to contribute to it whatever my weak- 
ened and weakening powers can ; but assuredly it is 
the last object for which I shall obtrude myself on the 
public observation. 

" Wishing anxiously that your great work may obtain 
compleat success, and become an example for the imita- 
tion and improvement of other States, I pray you to be 
assured of my unabated friendship and respect. 

" Th. Jefferson." 

38 



£98 LIFE OF EDWARD LIVINGSTON. 

While Livingston was engaged in restoring the Code, 
he suffered no diversions, either of pleasure, politics, or 
repose, to interrupt his work. When passing some weeks 
of a congressional vacation at the home of his sister, 
Montgomery Place, he said, in a letter to Du Ponceau : 
" Your city is becoming more quiet, I hope, after your 
contested election. The sound of these commotions 
reaches me in my quiet retreat, but it does not disturb 
either my repose or my attention to subjects I believe 
more important, but certainly better suited to my inclina- 
tion, and perhaps to my talent, if I have any." On being 
urged by Mr. Webster to pay the latter a visit, his answer 
elicited from the great expounder of the Constitution the 
following sample of ponderous gayety : — 



" Boston, Sept. 21, 1825. 

My Dear Sir: 



" You cheer us with the possibility of a visit, but again 
you damp us by calling it a faint hope. I can only ad- 
monish you, that, if you suffer these learned labors to in- 
duce you to deprive us of the pleasure of seeing you, as 
they have hitherto done, I shall be likely to be an enemy 
to codes all my life. As to Mrs. Webster, I believe she 
has decisively made up her mind on the subject. We are 
determined, however, to look out for you until we hear 
that you are gone South, or until we ourselves move off 
in that direction. 

" I am, dear Sir, very truly yours, 

"Danl. Webster." 

While Livingston continued a member of the House of 
Representatives, but few occasions arose for bringing him 



SIX YEARS IN THE HOUSE AGAIN. 



299 



out upon topics of general and permanent interest. The 
following passage — forming a small part of his speech 
delivered in January, 1826, upon a bill to amend the judi- 
cial system of the United States by creating new circuits, 
to embrace the States then lately admitted into the Union 
— exhibits well his manner in addressing- the House at this 
period. Having referred to the history of the several 
States which, after admission, had been for any time left 
without circuit courts, in order to explain the circum- 
stances and reasons of the omission, he proceeds : — 

" The first moments of a State are generally devoted to 
the interesting task of internal organization. The ener- 
gies and talents of the new State are directed to matters 
of immediate interest, and it is, therefore, not astonishing 
that this anomaly should not earlier have attracted atten- 
tion. Nor can the neglect be considered as a reproach, far 
less urged as an abandonment of the right. The time, 
however, has at length arrived, when the six States in 
which district courts only are now established demand that 
they should be placed on an equality with the other mem- 
bers of the Union, and the three other Western States 
desire such a modification of the system as will enable the 
judges of the circuit court to despatch the accumulation of 
business which obstructs the administration of justice. 
Why do the six States require this 1 Why do we desire 
to be placed on a footing with the other States ? We de- 
sire it, Sir, because we are States ! entitled to equality ! the 
most perfect equality with the oldest, the most populous, 
the most influential, the best represented State among the 
first thirteen of the Union ! Rights, privileges, honors, 
burdens, duties, everything, by the structure of our govern- 
ment, must be participated by every member of it, on the 
broadest principle of equality. I would not, coming as I 
do from one of the smallest States in point of population, 



300 LIFE OF EDWARD LIVINGSTON. 

— I could not, without betraying its honor and dignity, — 
receive in its behalf even an exemption from any duty, 
however burdensome, if borne by the other States, if it 
were conceded as a badge of inferiority ; I should be dis- 
avowed by those who sent me, and justly disavowed. They 
ask no exemptions ; but they demand ! yes. Sir, that is the 
word, — they demand an equality of rights. Inattentive 
to this right when it was not disputed, they are feelingly 
alive to it when their claim is contested ; and in their be- 
half I say, with Hotspur, for a disputed right, — 

' Mark ye me, 
I'll cavil on the ninth part of a hair.' 

" But, again, why do we desire the establishment of a 
circuit instead of a district court ? What advantage is 
to be derived from it ? I answer, the first effect will be 
uniformity. But what are the advantages, says the gentle- 
man from Virginia, of uniformity ? We desire it simply 
because it is uniformity. If the circuit system be an ad- 
vantage to the States in which it is established, it ought to 
be extended to us ; for we are entitled to every political ad- 
vantage, resulting from the Union, which they enjoy. If 
it be, on the contrary, a burden, it is one of which we 
ought to support our share. If the system be good, ex- 
tend it; if it be bad, abolish it, and give us one that shall 
be equal in its operation. We cannot extricate ourselves 
from this dilemma, while we acknowledge what nobody 
has yet ventured to deny, in words, — the perfect equality 
in political rights in the several States. Uniformity, says 
the same honorable member, can only, on this subject, be 
desired as a matter of State pride and State feeling. Yes, 
Sir, it is a question of pride and feeling, — of honest pride 
and dignified feeling, — a pride that ennobles, a feeling 
that will not permit us to suffer wrong, and which, when 
we disregard, we lose the best characteristics of freemen. 



SIX YEARS IN THE HOUSE AGAIN. gQl 

If this bill had no one object of profit, convenience, or 
utility, in the ordinary acceptation of those terms ; if 
its only end were to place us on an equality with the 
other States, in a circumstance the most insignificant, — 
if the right to it were denied, I should contend for that 
right with the same pertinacity. Sir, the privilege of 
being covered during the debates of this House is one 
which of all others I hold to be the most worthless ; it is 
one of which I do not frequently avail myself, and which, 
if it were not sanctioned by such high authority, I should 
think somewhat indecorous ; yet, Sir, make a discrimina- 
tion in this paltry privilege, — declare that none but the 
representatives from the Atlantic States shall be covered, 
but that those from beyond the mountains shall enter bare- 
headed, — do this, I will not ask how long we shall stay 
here, how many hats will be seen in this hall, but how 
many heads will be found to wear them. No, Sir, pride, 
founded on a sense of dignity, feeling, originating in a 
sense of wrong, ought to be cherished in governments, as 
in individuals ; lose them, and patriotism is at an end, and 
the motiv'C to glorious actions is destroyed ; for the pure 
virtue that does not need their aid has either never ap- 
peared upon earth, or is lost in the degeneracy of modern 
times. Direct them to proper objects, but do not reduce, 
or endeavor to annihilate them. 

" But is this a mere matter of pride] Important as its 
gratification is when properly directed, is that the ob- 
ject ? There are real disadvantages attending the present 
state of things, independent of the injury to pride of opin- 
ion or to wounded feelings of dignity. There is risk of 
fortune, of life, of reputation, to the inhabitants of six of 
the Western States, which is not incurred by those of the 
others. We have seen to what objects the powers of the 
Federal judiciary extend : that all suits in which an alien 



S()2 LIFE OF EDWARD LIVINGSTON. 

or a citizen of another State is plaintiff come within its 
scope ; and that accusations for crimes against the United 
States are to be decided there. Under these two heads 
every judicial question that can affect property, life, liberty, 
or reputation may be comprehended. 

" Now, I ask gentlemen who oppose this bill to give a 
deliberate answer — if they deign to give any, I am sure 
it will be a candid one — to this question : whether a de- 
fendant who has these all-important concerns depending 
upon the decision of a single district judge, not always 
a man of high legal talents, (for your paltry salaries will 
not command them,) without the fear of any revision of 
his sentence, and remote from any superintending control, 
— whether a defendant so circumstanced can be said to 
enjoy equal rights with him who cannot suffer either pun- 
ishment or loss of property unless the decision of his 
district judge is concurred in by a man selected from the 
highest talents and distinguished for his integrity and 
learning, and who, in every case of a doubtful nature, 
even when they concur, may, by a pro forma dissent, have 
the benefit of a recurrence to the assembled wisdom and 
justice of the Supreme Court. Are these two parties on 
the same footing ? Can it be said, with the semblance of 
reason, that they enjoy the same rights ? And can it be 
said that a State, all of whose citizens are subject to these 
disadvantages, is placed on an equal footing with other 
States, whose inhabitants enjoy the privileges I have enu- 
merated 1 If it cannot, the question is at an end ; for the 
terms of our admission are express. Each of the new 
States is declared ' to be one of the United States, and 
admitted into the Union on an equal footing with the orig- 
inal States, in all respects whatever.' Now, Sir, how is 
this stipulation fulfilled, if the property, lives, and liberty 
of ottr citizens are subject to the will of a single man. 



SIX YEARS IN THE HOUSE AGAIN. 

while yours can suffer in neither without the revision of 
a wise and enlightened tribunal 1 But we have an appeal 
from the decision of the district judge ; therefore we 
have no right to complain ! Error, Sir ! palpable error in 
fact, as well as fallacy in argument ! This right of appeal 
is limited, in cases of property, to those above two thou- 
sand dollars in value. But in many instances the whole 
fortune of an individual does not exceed that sum. lu 
criminal cases, there is no appeal. It is not only property 
that is concerned, but liberty and life. Both may depend 
on the construction of law. No innocence can protect a 
man from accusation. All are liable to be dragged before 
a court. My life may depend on a correct or false in- 
terpretation of a statute of the United States. It is sub- 
mitted to a district judge. He decides incorrectly against 
me, and my life is lost. There is no appeal from his de- 
cision, though he may be the man the least qualified, in 
the district, to pronounce. What would happen, if the 
case were tried in a circuit, not in a district court? 
First, the concurrence of a judge of the Supreme Court 
in the opinion of the district judge would be necessary. 
Secondly, if they did concur, if the case were one of first 
impression, a pro forma dissent would be entered, and 
final judgment could not be passed until the question had 
been solemnly debated, and the sentence had received the 
sanction of the Supreme Court. Now, I again ask gen- 
tlemen to say whether this is no disadvantage. Let them 
meet this question fairly, and either give a satisfactory 
answer, or agree to remove the evil by according to us a 
uniform administration of justice." 

In May of the same year, a debate upon the bill for 
the relief of James Monroe, providing for payment to 
the ex-President of various sums for services while in 
the employment of the government, and including an 



304< LIFE OF EDWARD LIVINGSTON. 

allowance for salary and expenses for a certain period 
of his absence on the mission to negotiate the purchase 
of Louisiana, — there being opposition to the bill, and 
the friends of Mr. Monroe showing in the discussion a 
perhaps over-zealous wish to make the most of the part 
he had acted in the negotiation, — afforded Mr, Living- 
ston an opportunity for making the following dignified 
and conclusive assertion of the controlling influence and 
merit of his departed brother in that most important 
transaction : — 

" Sir : while I feel grateful for the handsome, and, I 
hope I may be permitted to say, the merited eulogium 
which the gentleman from Virginia has paid to the char- 
acter of my deceased brother, I must not omit to rectify 
one error into which the gentleman has inadvertently 
fallen in stating the great services which the late Pres- 
ident had rendered to his country, — services which no 
one appreciates at a higher rate than I do, and in the 
performance of which, part of the debt which we are now 
about to pay was incurred. In enumerating these ser- 
vices, the gentleman adverted to his special mission for 
making the Louisiana treaty, and stated that until his 
arrival the resident minister, with all his exertions, had 
been able to effect nothing ; that the debts due to our 
citizens remained unpaid ; and he gives us to understand 
that the acquisition of Louisiana must be attributed to 
the exertions and diplomatic skill of Mr. Monroe. Now, 
Sir, with the most sincere desire to do justice to the im- 
portant services that gentleman has rendered to his coun- 
try, and with the greatest reluctance to say anything that 
might seem to operate against the bill for his relief, which 
I shall support by my vote, and would by my arguments, 
if I could suggest any more convincing than those which 
have been so ably and eloquently urged by the gentle- 



SIX YEARS IN THE HOUSE AGAIN. S05 

man from Virginia, I yet have a duty to perform, which 
obliges me to give to the House some account of the state 
of the negotiation with France at the time of Mr. Mon- 
roe's arrival. It may, besides the principal object I have 
in view, be Interesting as an historical fact. 

" The statement made by the gentleman from Virginia 
of the hopeless state of the negotiation is perfectly cor- 
rect, if applied to a time somewhat anterior to Mr. Mon- 
roe's arrival. An indifference to our complaints, eva- 
sions of the clearest claims upon their justice, inattention 
to the most urgent representations, for a long time char- 
acterized the conduct of the French cabinet. Disgusted 
with all these diplomatic manoiuvres of the ministers, 
Mr. Livingston resolved on a bold and unusual measure, 
the expression of a sincere admiration for the extraordi- 
nary man who was then at the head of the government 
of France, a prudent resolve to have no political connec- 
tion with, and to give no countenance to any party there, 
more particularly to that which, calling itself republican, 
naturally looked for aid from the minister of a republic. 
An established reputation for honor and integrity, and 
celebrity as a man of literature and science, had given 
him a personal influence with the First Consul, of which 
he was determined to try the extent. He had studied 
his character, and thought that if he could enlist the mil- 
itary pride and love of fame which entered so largely into 
the formation of that character on the side of justice, 
nmch might be done. Leaving, therefore, the beaten 
route of official notes to ministers, he addressed the prin- 
cipal himself. He made a short and plain, but forcible 
statement of the claims of our citizens ; he showed the 
injustice that had been done to them ; he adroitly availed 
himself of the national interest that had been excited in 
favor of France ; showed the value of the supplies (on 

39 



306 LIFE OF EDWARD LIVINGSTON. 

which some of our claims were fomided) to her colonies; 
contrasted the confidence and good faith of our citizens 
with the rapacity and infidelity to engagements with which 
they had been treated, and the anticipated payment of 
our engagement to France with her delays and refusal 
to do us justice; hinted at the advantage which England 
might make of the unfriendly disposition which such con- 
duct was calculated to excite ; and concluded with a short 
appeal to the feelings of the First Consul, on those points 
on which he knew he could most sensibly be touched, — 
his personal reputation, the dishonor of breaking engage- 
ments he himself had made, the reputation to be acquired 
by a strict performance of contracts, and the necessity of 
preserving the word of a soldier and a man of honor. 
After urging these considerations in the strongest man- 
ner, it was suggested, that, if the embarrassments of the 
treasury, naturally resulting from a long and expensive 
war, just then closed, and the prospect of its renewal, 
should render the payment or the funding of the debt in- 
convenient, means might be found (evidently pointing to 
a purchase of Louisiana) which would not only satisfy 
our claims, but relieve some of the exigencies of the State. 
To this was added the risk of losing the colony, if war, 
then daily expected, should again break out. These and 
other considerations were strongly urged in the letter. 
This address, though not in the usual course of diplomacy, 
was well received, and seems to have had the effect that 
was expected ; for a communication was immediately 
made to the minister, in which none of the usual evasions 
or subterfuges were resorted to ; it contained an explicit 
promise that the American claims should be honorably 
adjusted and speedily paid. To prevent speculation, as 
well as to create an additional tie on the French govern- 
ment, Mr. Livingston immediately gave notice to the 



SIX YEARS IN THE HOUSE AGAIN. 307 

agent of the claimants in France that he had received a 
promise on which he rehed for their payment, and at 
the same time wrote to the United States, giving a sim- 
ilar notice, desiring it to be made pubhc, and advising 
the creditors not to part with their debts. This was in 
the latter part of February, or the beginning of March. 
Mr. Monroe did not arrive in Paris until the 12th of 
April following. After this promise of payment, Mr. 
Livingston did not cease to urge its fulfilment ; and, be- 
sides the usual and obvious arguments contained in his 
former notes, he stated that he had the personal engage- 
ment of the First Consul, on which he had so much relied 
that he had committed himself to his countrymen for its 
punctual performance ; that the season for evasions and 
delays was past; and that he had the fullest confidence 
in the honor and faith that had been pledged for doing 
justice to his countrymen. Thus urged for the perform- 
ance of a promise which he himself considered as an hon- 
orable one, but without the means of performing it in one 
way, the First Consul resolved to comply with it in the 
other, that had been suggested by the minister ; and there 
is the strongest reason to believe that a resolution to sell 
was taken in council some days before Mr. Monroe ar- 
rived in France ; but what is certain is, that the dav be- 
fore his arrival in Paris the cession of Louisiana was 
proposed to Mr. Livingston by Talleyrand. Mr. Liv- 
ingston, had then heard, either that Mr. Monroe had ar- 
rived at Havre, or was hourly expected, with powers on 
that subject, and of course declined any specific answer 
until he should arrive. Talleyrand then pretended that 
he spoke without authority. But within two days after, 
so urgent was the French cabinet to conclude the sale, 
that one of the French Ministry, an old and intimate 
friend of Mr. Livingston, called on him, the day of or 



308 LIFE OF EDWARD LIVINGSTON. 

the day after Mr, Monroe's arrival, but before he had 
presented his credentials, before he had taken or could 
take a single step in the negotiation, and explicitly offered, 
by authority of the First Consul, to cede the province, 
for a sum very little beyond that which was afterwards 
agreed to be given by Mr. Monroe and Mr. Livingston. 
The way was paved for this important acquisition by 
official notes, indirect communications, and printed essays, 
showing the little value of Louisiana to France, the ques- 
tion that would arise with the United States relative to 
the navigation of the Mississippi, and the right of deposit 
secured to us by Spain, and the certainty of its conquest 
if the war should be renewed with Great Britain. So 
that when Mr. Monroe's health permitted him, after his 
arrival, to take part in the negotiation, everything w^as 
done but fixing the price. In this, he cooperated with 
Mr. Livingston, and they produced a diminution from 
$12,000,000, exclusive of our own claims, to $1,000,000, 
also exclusive of those claims.* The results of that treaty 
have been most beneficial to the United States. The 
measures and arguments which led to it have frequently 

* This statement, including the upon himself, nevertheless, to de- 
figures in the text, is according to mand the sum of 80,000,000 francs, 
the report of Mr. Livingston's re- To this demand the American Min- 
marks, in the annals of Congress, isters, Messrs. Livingston and Mon- 
There is a considerable error, either roe, soon acceded, only asking a 
in the report or in Mr. Livingston's stipulation, to which France agreed, 
information on the point here re- that, out of the 80,000,000, the Uni- 
ferred to. That the report is at ted States should reserve 20,000,000, 
fault in part I think is clear from the to be applied to the satisfaction of 
fact that these figures contradict what claims of their own citizens against 
the speaker had said a few sentences France under the Convention of 
before. The following is, in sub- 1800. It was declared by the treaty 
stance, the whole history of the ne- that five and one third francs should 
gotiation, as to the price of Louisi- equal the dollar of the United States, 
ana. Napoleon authorized his min- So that the sum paid directly to 
ister, Barbe-Marbois, to agree to cede France on the purchase was $1 li- 
the territory to the United States for 250,000, and the sum reserved to 
the price of 50,000,000 francs, that satisfy the claims of citizens of the 
sum, and no other, being his own United States was $3,750,000, mak- 
suggestion. Barbe-Marbois took it ing the whole price $15,000,000. 



SIX YEARS IN THE HOUSE AGAIN. 



309 



been detailed to me by my deceased relation. He fore- 
saw the advantage that must result to this country from 
the acquisition, and he felt an honest pride in having been 
instrumental in obtaining it." 

No young politician could have been more attentive to 
the ordinary and special interests of his constituents than 
was Livingston at this period. He had been a member 
of the House but four days when he introduced a measure, 
which he afterwards pushed till it was carried into effect, 
for the erection of light-houses, beacons, buoys, and float- 
ing lights, along the track of navigation between New 
York and New Orleans ; and his active exertions se- 
cured the erection of new and splendid Federal build- 
ings at the latter place. He consulted not less the wants 
and habits of the people of Louisiana in his efforts, 
which were successful, to effect, in the changes of the 
tariff", the imposition of additional duties upon the im- 
portation of molasses, and a reduction of the duties upon 
red wines. 

At the same time, his letters and political writings 
show that he felt the most lively interest in national 
works and projects, as internal improvements, the great 
national road, and the scheme of uniting the two oceans 
by a ship-canal, cutting the Isthmus of Panama. But that 
which employed his labors and thoughts more than all 
these subjects was the perfecting and restoring of his 
system of penal law, which, after its completion for 
Louisiana, he hoped to introduce into Congress, with 
such changes as would adapt it to the use of the United 
States. For this reason, principally, he wished to con- 
tinue a Representative. In order to do so, it was neces- 
sary for him — so unskilfully had he managed his pecu- 
niary affairs — to undertake some practice in the Supreme 
Court, in order to eke out, with his pay as a member, 



310 LIFE OF EDWARD LIVINGSTON. 

an income sufficient for his expenses. To such profes- 
sional labor he devoted himself with characteristic cheer- 
fulness and zeal. 

In the year 1 8£6 * he paid his long-standing debt to 
the government, with its accumulations of interest, amount- 
ing then to a sum greater than the principal. This was 
done by the sale of property to the government. As so 
poor a financier was not likely to live long enough to 
have so large an amount of money by him at one time, 
it was well that this method of closing the business was 
thought of. Having disentangled from the Batture liti- 
gation some lots in the city of New Orleans, to which 
his title became clear and no longer disputed, he offered 
them to the Treasury department for a sum covering 
the precise amount due upon the judgment against him, 
with interest. This sum was ^100,01 4.89- The ad- 
j ministration, of which he was politically an opponent, 
[ after consideration, accepted the proposal, took the prop- 
l^ erty, and discharged the debt."]* The government made 
by the purchase a good bargain ; for it not long after- 
wards sold the lots for ^106,208.08, and so realized a 
profit from the transaction. The debtor felt his relief 
profoundly, but not, I suppose, with so keen a sense as 
he would have experienced if he could have attained it 
twenty years sooner. 

The manners and social habits of Livingston were un- 
changed. He preserved the vigor of his health by daily 
long walks, and his relish for society by free intercourse 
with his friends and their families. His powerful con- 
stitution enabled him to enjoy heartily a social, and even 
a convivial dinner, and immediately to retire, as if refreshed 

* The above is the time of the act- + This arrangement was carried 

ual satisfaction of the debt. The out through the machinery of a sale 

formal discharge did not come out by the Marshal on an execution, 

of the " Circumlocution Office" till the United States, by an agent, be- 

ihe 20th of August, 1829. coming the purchaser. 



SIX YEARS IN THE HOUSE AGAIN. 311 

and strengthened, to spend the best part of the night in 
the deepest studies. These lucubrations, . so long con- 
tinued, did gradually lead him into occasional habits of 
abstraction among his family and most intimate acquaint- 
ances. When caught in these absences of mind by the 
exposure of some irrelevant answer on his part, he would 
laugh heartily and loud. In the genial simplicity of his 
demeanor he seemed unconscious of his increasing age, 
or of his growing reputation. He discussed with ani- 
mation the most ordinary topics. He was always fond 
of lively conversation, pun, and repartee ; but spirit rather 
than wit was the characteristic of his own share in such 
conversation. Of acrimony, or that pungency which is 
akin to it, he was incapable. While he continued a rep- 
resentative, Josiah S. Johnston, a native of Kentucky, 
and a distinguished and able man, was one of the sen- 
ators in Congress from Louisiana. Livingston and he 
belonged to opposite parties, but personally were on terms 
of great intimacy and perfect good-feeling. While the 
former was member of the House, one of the terms of 
the senator was about to expire, and he was the candi- 
date of his party in the legislature for reelection. The 
opposition, in Livingston's absence, voted for, and near- 
ly succeeded in electing him senator in place of his friend. 
One evening, while the result of the election was looked 
for at Washingston, Mr. Livingston, at a ball, approached 
Mrs. Johnston, who was standing in a set ready to dance, 
and, bowing very low, said, " Madam, I congratulate 
you. Your husband is chosen senator for six years 
more." The lady thanked him for his news and his 
gratulations. He lifted his finger as he turned to leave 
her, saying, with a droll mixture of mock chagrin and 
unmistakable good-nature, " But mind you. Madam, it 
was only by a very few votes, very few indeed." 



Q12 LIFE OF EDWARD LIVINGSTON. 

At the same time that Livingston first took his seat 
in the House as representative from Louisiana, General 
Jackson repaired to Washington as a newly chosen senator 
from Tennessee; and he resided there until his resignation 
of the office two years later. We have seen how the ac- 
quaintance between Jackson and Livingston had begun, in 
Congress in 179^, with common political views and mutual 
respect ; how, after the lapse of many years, their destinies 
had brought them into close relations with each other 
in the memorable defence of New Orleans; and how they 
had worked together and leaned upon each other through- 
out that critical and glorious campaign. The impressions 
which they had then left upon each other were inefface- 
able. Livingston had clearly discerned in the General 
those distinctive qualities which at length became so fa- 
miliar to all the world; and he had marked him Presi- 
dent of the United States, while Jackson himself had 
not dreamed of his own fitness for such an office till 
years afterwards. He was then as proud of the General's 
friendship and confidence as at any later period, even in 
the zenith of the latter's popularity and world-wide fame. 
After parting, in 1815, they had written to each other 
often, and on every occasion of any importance in the af- 
fairs of either. So complete was their intimacy that they 
had taken mutual pleasure in executing for each other the 
most ordinary commissions. In 1819, Livingston, wish- 
ing to assist a friend in procuring a pair of matched 
horses, had consulted General Jackson on the subject, 
who was delighted to get, for a price within the limit 
allowed, "the only pair of good matched horses within 
his knowledge," which, after purchasing, he would not 
send till " a fair experiment could be made with them in 
harness." In answer to an apology by Livingston for 
troubling him with such a request, he had replied, " I 



SIX YEARS IN THE HOUSE AGAIN. gjg 

regret that you should hesitate to command me in any 
service that I could render to you or to your friends. I 
never shall forget the aid you rendered me in the trying 
scenes before New Orleans." The substance of this ex- 
pression he had often, and on almost every occasion,? re- 
peated. In the same letter from which it is quoted he 
had added, " I thank you for your expressions of con- 
gratulation on the triumph over my enemies in their late 
wicked attack on me. These were the real enemies of 
our country ; they cared not how deep or how unmerited 
the wound they gave me, provided they could reach 
and prostrate the administration, and exalt themselves 
upon its ruin ; but ******* *^ ****^ ^ Qq^ have 
prostrated themselves ; they are politically fallen, never 
to rise again. This is justice; for when men abandon 
principle, and adopt the plan of elevating themselves upon 
the downfall of others, regardless of the means they em- 
ploy to obtain their object, they ought and ever will 
tumble, and their base acts recoil upon themselves. I 
intend tendering to the Senate an answer to the report 
of their committee, with the necessary documents, which, 
I trust, will show their wickedness to the world. I wish 
that you had the documents, or that I could wield your 
pen." In December, 1816, the General, becoming some- 
what excited by what he thought the prospect of " a brush 
with the Dons," had written to Livingston that he hoped 
to have the latter with him in case of a campaign. Early 
in 1823, President Monroe had tendered to General 
Jackson the post of Minister to Mexico, which the lat- 
ter had declined. On that occasion he had written the 
following letter to his friend : — 

*^ Hermitage, March 24, 1823., 

" My Dear Sir : On the receipt of your letter of 

40 



314? LIFE OF EDWARD LIVINGSTON. 

the 25th ult. I had only time by the return mail to ac- 
knowledge its receipt, and say to you that on the subject 
of the mission to Mexico I had not been consulted, and 
that I had declined accepting of this mission. 

" It was a just deduction of my friends to conclude 
that I had been consulted before my nomination to the 
Senate, and, of course, that I would accept the appoint- 
ment ; and many of them may conclude, under this im- 
pression, that I am very fickle, when they learn that I 
have declined j for this reason, I have thought it due to 
you that you should be informed truly on this subject, 
and also my reasons for declining. 

" The first I heard of the intention of the President 
was in a letter from Major Eaton, our senator, who ad- 
vised me that Mr. Monroe had sent for and consulted 
him upon the subject, inquiring his opinion whether I 
would accept, to which the Major replied that he could 
form no opinion upon the subject, Mr. Monroe ex- 
pressing a wish that he would assure me of his friendly 
views in making this nomination, I immediately an- 
swered that I would not accept ; and a few days after 
this answer to Major Eaton, I received Mr. Monroe's 
letter advising me of his nomination and the approval 
of the Senate of the United States, to which I replied 
that I could not accept for the reasons following in 
substance. 

" The present unhappy revolutionary state of Mexico, 
with an oppressed people struggling for their liberties 
against an Emperor whom they have branded with the 
epithets usurper and tyrant, convinces me that no min- 
ister from the United States would, at this period, effect 
any beneficial treaty for his country, and of the impolicy 
of a republican representative at a court, which might be 
construed as countenancing the empire in opposition to a 



SIX YEARS IN THE HOUSE AGAIN. $15 

republic. The people of Mexico, in their honest efforts 
for freedom, command my warmest sympathies ; and their 
success is intimately connected with the ultimate and gen- 
eral triumph of those liberal principles for which our 
Revolutionary worthies fought and bled, and which now 
form the pride and boast of United America. With 
these feelings and wishes, which I believe to be general, 
and in unison with my fellow-citizens, I did believe my 
situation at Mexico would be embarrassing to me, inde- 
pendent of the conviction that I was rendering no ser- 
vice to my country, when, by appearing at that court, 
it might strengthen the tottering crown of Iturbide, and 
enable the tyrant to rivet the chains of despotism upon 
his country. To render service to my country could 
alone constitute any motive for again acting in a public 
capacity. You will find from my reasons stated, that 
in consulting my own feelings I have not been un- 
mindful of or uninfluenced by considerations connected 
with the best interests of my country, which I trust have 
heretofore and shall always govern my conduct. Had 
the affairs of Mexico been in a different . condition, had 
the voice of the people governed, my conclusion would 
have been different ; for I believe it the true principle of 
our government, that every man's services belong to the 
nation when they are required by the unsolicited voice of 
his country ; and the appointment, being made without 
consulting me, embraced what I believe ought to be the 
governing rule of the President in making his nomina- 
tions. Had I accepted this mission, it would have been 
among the first of my wishes to have had you with me. 
Should I ever be again brought by the unsolicited call 
of my country on the public or political theatre, I should 
calculate to have you near me ; but on such an event I 
do not calculate. I am no intriguer. I would not act, in 



316 LIFE OF EDWARD LIVINGSTON. 

one single instance, that character for all the public favor 
that could be bestowed. My country has brought my 
name before the American nation, and the people must 
decide. The presidential chair is a situation which ought 
not to be sought for, nor ought it to be declined when 
offered by the unsolicited voice of the people. To their 
choice the Constitution has left it, and happy for the per- 
manency of the constitutional government and the perpet- 
uation of our Union, if designing demagogues will let the 
people exercise this, their constitutional privilege, without 
attempting to thwart it by subtle intrigue and manage- 
ment. 

" On the receipt of this, if leisure permit, I would 
thank you for your views of the correctness of my de- 
cision and the ground I have assumed and on which I 
have always practised, and, I would add, I have grown 
too old in the practice ever to change. 

" Present myself and Mrs. J. respectfully to your lady 
and daughter, and to Major Davezac, and accept assur- 
ances of my friendship and esteem. 

" Andrew Jackson. 

" Edward Livingston, Esq, 

" P. S. I have not had leisure to read your report 
through. As far as I have gone, I approve it fully. If 
the penitentiary system can be established to meet your 
views, it will be a happy amendment to the criminal 
code, and the name of E. L. will be handed down to 
posterity as the greatest legislator of his day. 

" A. J." 

The attachment between Jackson and Livingston, so 
well formed and so long cherished, acquired further 
strength by their residence together at Washington from 
1823 to IS25. The latter supported his friend ardently 



SIX YEARS IN THE HOUSE AGAIN. QIJ 

in the unsuccessful presidential campaign of 1824, and 
from that time did not flag in the zeal or activity of his 
exertions until the more fortunate result of the election 
in 18*28 was achieved. His opportunities for knowing 
Jackson being generally understood, he was appealed to 
by influential politicians from different parts of the coun- 
try, to say whether or not Jackson was an ignorant and 
passionate man ; whether or not he had any respect for 
laws or constitutions ; and whether it was true or not that 
he had little understanding, or that he had not received 
anything that could be called education ; and whether or 
not he was really capable of writing a decent letter. He 
industriously answered these inquiries, detailing and ex- 
plaining the General's conduct during the defence of 
New Orleans, and the circumstances of the declaration 
of martial law. In one of these responses, addressed 
to Timothy Pickering, he wrote, referring to the period 
of the campaign : " During this time I enjoyed his con- 
fidence, which I should esteem it one of the greatest 
misfortunes of my hfe to have at any time since been 
deprived of. I think, therefore, that I know him w^ell. 
I have seen him in circumstances of most extraordinary 
difficulty, amid the greatest dangers and perplexities, and 
in the hour of victory and triumph, and witnessed the 
resources, the energy, firmness, courage, and moderation 
which distinguished his whole conduct in these several 
situations, — conduct ahvays adapted to the occasion which 
rendered it necessary, without the slightest attention to the 
effect which his measures might have upon himself. I 
am not writing his panegyric, or I could give instances 
of all that I allege. I am giving, what you asked, my 
honest opinion." 

In September, 1828, whilst the presidential canvass 
which resulted in Jackson's first election was raging, 



318 LIFE OF EDWARD LIVINGSTON. 

and exciting the whole country, Mr. Livingston visited, 
on a purely professional errand, the city of Harrisburg, 
among whose inhabitants he had not a single acquaint- 
ance. He was, therefore, surprised to receive, as soon 
as his arrival was known, an invitation to a public din- 
ner from the Democratic leaders in the city. He ac- 
cepted the honor, apparently for the purpose of deliver- 
ing a fervid speech in the support of Jackson. The 
following was the toast to which the speech was a 
response : — 

" The Honorable Edward Livingston, our distinguished 
guest. His civil attainments adorn the records of his 
adopted State, and his military services at Orleans will 
remain bright on the page of history as long as that 
glorious victory is remembered by freemen. The people 
of Pennsylvania hail him as the talented advocate of the 
rights of man, and the early and firm friend of General 
Jackson." 

On this occasion, Mr. Livingston, after touching upon 
the distinctive principles of the Democratic party, spoke 
mainly, with great feeling and power, of the personal 
character imparted to the contest by the opposers of 
" a man whose reputation was identified with that of 
his country, the measure of whose glory he had filled 
to overflowing." He closed the reference to this topic 
with the following allusion : — 

" It may be remarked, to the honor of our country, 
that in no other is the female character held more sacred. 
A woman may travel alone from one extreme of the Union 
to the other, without an insult, unprotected but by her 
modesty and the respectful courtesy that is paid to her 
sex ; and everywhere she would find a champion to 
avenge even an insulting look. Before the present con- 
test, the most violent zealot of a party, or the most de- 



SIX YEARS IN THE HOUSE AGAIN. gjg 

graded of the vile tril)e who prostitute their talents to 
the political aggrandizement of others, has not dared 
to stain the pages of our papers with the remotest allu- 
sion to female character. It was reserved for this con- 
troversy to change this honorable feature in the char- 
acter of our country, by a ruffian attack on that of a 
meek, pious, charitable, honorable matron, — an attack 
as false as it is base and unmanly. 

" Now, Gentlemen, examine to what all this leads, and 
say whether we have not something more important than 
the mere success of our candidate at stake on this elec- 
tion. If these means prevail, they will again be resorted 
to ; they will be met by similar efforts ; that candidate 
will not succeed who is shown to be best suited for the 
station, but he who can most effectually vilify the char- 
acter of his opponent, and of those who support his pre- 
tensions. Men of respectability will withdraw from the 
degrading contest, both as principals and supporters ; the 
vile and worthless alone will fill your offices ; and men of 
integrity and honor will be drawn to seek, under hered- 
itary succession to office, a refuge from the disorders of 
a democracy thus conducted. 

" I have ventured to enlarge upon this theme, Gentle- 
men, partly to prove, that, if we wish to preserve our re- 
publican institutions and the morals of our people from 
pollution, it is necessary to strain every nerve to put 
down this first attempt upon the integrity of our sys- 
tem, and partly because the expression of your indig- 
nation and contempt of these unworthy attacks may dis- 
courage any attempt by our friends to contend with the 
same weapons. Strong in the character, services, and 
talents of the men we support, we need no such means ; 
and we disdain them even if they were necessary to suc- 
cess. 



3^0 LIFE OF EDWARD LIVINGSTON. 

" No, Gentlemen, we have better grounds for confi- 
dence. The man we support did not court the office 
which the voice of the country calls him to fill. To Re- 
publicans in Pennsylvania I need not repeat the many 
titles he has to their support." 

The following was the conclusion of this dis- 
course : — 

" For my own part, when my duty required me to 
make the selection between the two candidates, I did 
not hesitate, — not from any dislike to Mr. Adams, for 
I had none, — on the contrary, I had a high opinion of his 
talents, and believed in his political and private integrity, 
— but from a decided preference to the other candidate, 
whose qualities I thought better fitted him for the place. 
Nor has reflection or any subsequent event changed the 
opinion I had then formed. I first knew him when we 
were members of the same House of Representatives, 
more than thirty years ago ; and he then inspired me 
with respect for the firmness of his character, the purity 
of bis political principles, and the sound understanding 
he evinced in their support. From that time, we never 
met until he was called to conduct the defence of the 
city in which I lived. In his conduct of that defence 
he developed the resources of a mind that proclaimed him 
equal to any task which the service of his country could 
require. Energy, combined with prudence ; courage, to 
face not only the dangers of the field, but to incur the 
responsibility of every measure, however unpopular, that 
was necessary for the defence of the country ; stern in- 
tegrity ; the most disinterested contempt of private emol- 
ument ; courtesy of manner that won the hearts of all 
who approached him, and that commanded the admira- 
tion even of the enemy, in his epistolary intercourse ; 
and, above all, a respectful submission to the laws, even 



SIX YEARS IN THE HOUSE AGAIN. 3^1 

when they were so administered as to impose a heavy 
penalty for acts which he conceived himself forced to do 
for the preservation of those laws. These qualities, when 
your public affairs are placed under his direction, will en- 
able him to conduct them with wisdom and success. He 
may not, perhaps, with the dexterity of others, twine the 
cobweb thread of diplomatic sophistry ; but he will pur- 
sue the interest of his country, in its foreign relations, in 
the plain path which honest intentions will always mark 
out, disdaining any attempt to overreach, with too much 
sagacity to be himself deceived, and with a firmness that 
will never be overawed. This, Gentlemen; is worth all 
the skill in diplomacy of which we have heard so much, 
and seen so few beneficial effects. At home, he will per- 
form his duty, and see that others perform theirs. The 
seat of government will not, at stated seasons, be deserted; 
nor will the duties of all the departments be heaped upon 
one head. All this we have a right to expect from the 
character of the candidate we support. That he will 
be chosen, there can be now no doubt. Let us all 
endeavor that it shall be by so triumphant a major- 
ity as will show the indignation of the people against 
the foul means by which he, and his country's honor 
through him, have been assailed. We shall then avoid 
the recurrence of the disgraceful scenes that now sur- 
round us ; we shall become a happy, a united, a repub- 
lican people ; and although we shall always know our 
parties and our preferences, they will not, probably, be 
attended with the excesses which characterize the pres- 
ent contest, — for the event will have proved that they 
are useless, as well as unworthy of a free people. 

" I have not ventured to mix in the important topics 
upon which I have touched any individual feeling. I 
must conclude with the expression of that with which my 

41 



LIFE OF EDWARD LIVINGSTON. 

heart is filled, gratitude for your unexpected and highly 
flattering attention, and the hope given by your kindness, 
that I shall leave many friends where, but two days since, 
I had not even an acquaintance. I offer you, Gentlemen, 
a toast analogous to the sentiments I have expressed, 
and which contains an opinion I honestly and conscien- 
tiously entertain : — 

" The election of Andrew Jackson. It will establish 
our honor abroad, insure union and tranquillity at home, 
and rescue the principles of our government from defa- 
mation." 

The election of representative in the next Congress 
from the New Orleans district had already taken place, 
and the friends of Livingston had this time been defeated. 
We have seen that his first election had been unanimous. 
Two years later, the supporters of the Federal adminis- 
tration had presented a party candidate against him, but 
with a not encouraging result. A third time, this kind 
of opposition had become stronger ; and it was now suc- 
cessful. The length of time required, at this period, to 
make the journey between Washington and New Orleans, 
and the season of the year at which the Congressional va- 
cation occurs, especially in each alternate year, precluded 
the members from Louisiana from often seeing their con- 
stituents. Livingston had visited home but once during 
six years. This continued absence — though excused 
by the circumstances just now mentioned, and by the 
fact, that during one long vacation he had been detained 
by duty in a committee charged by the House with a 
most important investigation, and at another by the task 
of prosecuting the claims of his constituents for the value 
of slaves carried off by the British during the siege of 
New Orleans, not to speak of the repose needed for his 
labors upon the Code — was wielded effectually by the 



SIX YEARS IN THE HOUSE AGAIN. 

politicians who desired his seat. When General Jack- 
son heard of the result, he wrote to his friend, under date 
of August 2, 1828: — 

" I sincerely regret to hear that you have lost your 
election. I was fearful of this, when I read your letter 
and found you had not returned to New Orleans. Two 
speeches to your constituents would have given you a 
large majority. Your absence, combined with the sys- 
tem of detraction, by the supporters of the administra- 
tion, which was unsparingly wielded against you, gulled 
the people, and defeated your election. Your friends still 
think they will be able to elect you to the Senate of 
the United States ; but unless you visit New Orleans in 
the fall, you will be beaten. Your enemies have wielded 
your absence against you, and will still use it to your 
injury. You must visit your friends this fall to succeed, 
when we will expect to see you as you pass, with your 
family, at the Hermitage, to whom present Mrs. J. and 
my salutations." 

Livingston was doubtless well aware, whilst the can- 
vass was pending, that by attention to those means the 
neglect of which is here regretted, he might save his 
election. But although he desired to retain his place, 
he preferred not to go out of his way in concessions to 
the popular requirements. He issued an address to his 
constituents, telling them the plain truth of the matter, 
in which, after referring to the constancy of his labors, 
he added : " Yet this great personal inconvenience, this 
sacrifice of interest, this necessary and incessant atten- 
tion to the duties of my place, have, by the inveterate 
spirit of party, been imputed to me as a fault. I have, 
it is said, treated you with contempt, by not abandoning 
the duties confided to me, in order to come and court 
your favor. I would have been more worthy of con- 



S24f LIFE OF EDWARD LIVINGSTON. 

fidence, according to these wretched scribblers, if I had 
deserted your interests, and those of the nation, and 
regularly come on to solicit your votes." But this man- 
ner of reasoning was not conclusive with the majority of 
those to whom it was addressed ; and the representative 
whom they had at first chosen with a unanimous voice, 
who had served them with zeal and advantage, who was 
willing to continue in their service, whose character, genius, 
and fame reflected honor upon them, and whose with- 
drawment from Congress would be a material subtrac- 
tion from the dignity of that body, was recalled by the 
votes of the electors, and Edward D. White was re- 
turned in his place. 

The legislature of Louisiana, at its next session, elected 
Mr. Livinei'ston a Senator of the United States. Whether, 
in the mean time, he had visited New Orleans, in accor- 
dance with General Jackson's counsel, or had taken any 
steps to further his own elevation, or not, I have been 
unable to ascertain. 



'^ 



CHAPTER XV. 
SENATOR OF THE UNITED STATES. 

The Satisfaction of Livingston's Ambition — His Social and Domestic 
Habits — Letter to his Daughter — Jackson's Desire to employ him in 
the Government — Offer of the Mission to France — Peculiar Attractions 
of the Post for Livingston — Letters from Lafayette — Necessity of Declin- 
ing the Mission — Appearance in the Senate — Speech on Foot's Resolu- 
tion — Correspondence with Bentham — Project for adapting the Liv- 
ingston Code to the Use of the Federal Government — Senatorial Inde- 
pendence. 

LIVINGSTON had no political ambition which was 
not now entirely satisfied. The promulgation of 
his system of penal law continued, as its preparation and 
restoration had long done, to occupy his thoughts and to 
employ his industry, far more than did his official labors 
or any plans for his own advancement. But not all this 
occupation could ever, at any time, engross his faculties, 
or blunt his relish for constant literary culture, for genial 
society, or, above all, for the daily pleasures of the fire- 
side at home. From his wife or daughter he was seldom, 
and never long, separated. When absent, he invariably 
wrote to the former every day; and the latter, whenever 
she could not enjoy his conversation, always received from 
him the best possible substitute. Of his letters to her, 
the following, written at this period, is a characteristic 
passage : — 

" Have you never a poet in your train ] Here is a 
subject for one. I had read in the papers that the great 
success of the railroads in England, had induced the own- 



Q26 LIFE OF EDWARD LIVINGSTON. 

ers of canals to turn off the waters from them, and change 
them into roads. I imagined the water-nymphs joining 
in a chorus of joy, at the prospect of having their streams 
restored to their natural channels, meandering through 
flowery meads, dancing gayly over sunny pebbles, leaping 
in all the joy of nature over the rocks of their cascades, 
released from the imprisonment of long, rectilinear, muddy 
canals, where they were forced to bear the burdens of 
inevitable barges and reduced to the condition of dull 
stagnant pools. Instead of the vulgar slang of boatmen 
and traders, to listen to the fine frenzies ,of the poet and 
the lover of nature, etc., etc., etc. What do you think 
of the cadre ? " 

Mr. Livingston became a Senator on the same day that 
General Jackson entered upon the Presidency. The 
latter at once, as was to be expected, desired to employ his 
friend in the administration. And yet he had in his 
gift no place for which the senatorship could be ex- 
changed as a clear matter of advancement, and no place 
the duties of which were better suited to the tastes of the 
new senator. The mission to France, alone, had for Liv- 
ingston, especially at that moment, some attractive features, 
which might have induced him as matter of choice — 
though not without hesitation or doubt — to resign his 
seat in the Senate. His system of penal law had already 
received a very general notice and admiration from the 
publicists of Europe, and especially from those of 
France, where the work was destined shortly to procure 
for him, as we shall see, the rare honor of an election 
to membership of the French Institute. He had never 
visited Europe, nor seen many of the European publicists 
with whom he had long corresponded. And France was 
the home of one of the oldest, as well as warmest and 
most constant, of his personal friends, — Lafayette. The 



SENATOR OF THE UNITED STATES. 



S27 



venerable Marquis wrote to him, under date of March 
19, 1829: — 

" . . . . You will easily believe I am anxious to be in- 
formed of your destination in the new presidential ar- 
rangements. Are you a member of the Cabinet, or, as 
it appears our excellent friend, Mr. Brown, contemplates 
to return home, will you, in that case, come to France 
as a minister ? How pleasing to me this last circum- 
stance would be, I know it is superfluous to express. 
Contrary winds keep back the New York packets ; I 
hope that of the 10th of March may have a better 
chance, so as to give me speedy information of your per- 
sonal situation. The death of poor Mrs. Jackson has 
been to me a matter of much grief. She was particu- 
larly kind to me, and I felt for her much esteem and 
affection 

" Present my best respects to the President. My 
children join in my own and George's anticipations to 
welcome you on this side of the Atlantic, and I am, with 
all my heart, 

" Your affectionate friend, 

" Lafayette." 

On the 16th of April, Lafayette wrote to Livingston 
again on this subject : — 

" My Dear Friend : The packet of the 10th being 
the last we have received, and Mr. Van Buren's Secre- 
taryship of State having been announced, I had antici- 
pated the pleasure to see you and family in France, as 
Plenipotentiary Minister. Our friend, and very justly 
regretted, Mr. BrowTi, has thought it necessary, owing 
to Mrs. Brown's state of health, to return home, and 



328 



LIFE OF EDWARD LIVINGSTON. 



knowing your intimacy with the President, and his ex- 
perienced confidence in you, I was assured that the ap- 
pointment greatly depended upon you ; nor did I think 
that you should find in Mrs. Livingston, Cora, and 
our friend Davezac, great objection to your accepting a 
mission to France. Further information, by way of 
Liverpool, discourages my hope to welcome you on this 
side of the Atlantic, so that I write these few lines, which 
yet may pass you as we past each other on the western 
waters about four years ago. 



" The session will keep me in town until the end of 
June. My son and colleague begs to be aifectionately 
and respectfully remembered. Le Vasseur has been, 
since the beginning of the year, settled in his library es- 
tablishment. You know he contemplates writing some- 
thing on our American delightful tour. But he felt 
the impropriety of such a publication in the so intimate 
situation he did occupy near the principal object of the 
related events ; nor would I take any cognizance of his 
manuscript, thereby avoiding not only the participation 
in flattering remarks, but also the responsibility of omis- 
sions relative to facts and names, which, although en- 
graved in my heart, might have extended his observa- 
tions or the bounds of his book. So that if it comes out, 
I shall then read it for the first time. 

" Although I have ever thought it a matter of pro- 
priety, situated as I am, not to meddle either with party 
disputes or individual appointments, I will tell you con- 
fidentially, as your old friend, and also as a friend to Gen- 
eral Jackson, that a rumor of numerous changes has ex- 
cited some uneasiness on this side of the Atlantic 

Indeed, American situations on this side of the ocean are 
well filled. What arrangements the President will make 



SENATOR OF THE UNITED STATES. $29 

I do not know, nor do I mean to intrude myself in any 
interference. But as public concerns are going on well, 
I think, between you and me, that wherever he means no 
change, private uneasiness ought to be relieved. 

" Adieu, my dear Edward ; present my affectionate 
respects to Mrs. Livingston and Cora. Remember me 
to Davezac and other friends wherever you are, and be- 
lieve me forever, 

" Your affectionate friend, 

" Lafayette." 

It was a correct surmise, that the mission to France 
was the office which the President designed for Living- 
ston. There was a most important and delicate errand 
to be committed to the minister, namely, to obtain from 
the French government a tardy indemnity for the spolia- 
tions which had been committed upon American vessels, 
under authority of the Berlin and Milan decrees of Napo- 
leon. This was one of the subjects that received Jack- 
son's earliest official attention, and he thought Livingston 
the best agent he could send for the accomplishment of 
the purpose in view. Upon him accordingly this office 
was pressed, during the first month of the administration, 
— the period of the above letters from Lafayette. Thus 
solicited, Livingston inclined, on the whole, though with 
some reluctance and misgiving, to accept the mission. 
But being in the month of April urged by the Presi- 
dent to accept immediately and depart soon, he was 
obliged to decline the post, because some circumstances 
in his private affairs constrained him to stay at home till 
October. Such a delay was too long for the views of 
General Jackson, and Mr. Rives, of Virginia, was sent 
to the French Court. In December following, Mr. Liv- 
ingston first appeared in the Senate. Of his late asso- 

42 



330 LIFE OF EDWARD LIVINGSTON. 

ciates in the House, Mr. Webster had preceded, and Mr. 
Clay soon followed him. 

Mr. Livingston made but few set speeches in the Sen- 
ate. No senator was Hstened to with more profound 
respect than he, whenever he spoke ; but mere oratory- 
he now left, for the most part, to others. His most 
elaborate speech was his first, dehvered on the 15th of 
March, 1830, occupying the whole day, and covering 
about sixty printed pages in the report. It was part 
of the memorable debate upon Foot's resolution, raising 
the question of the true policy of the government with 
respect to the public lands, and best known as the oc- 
casion of the celebrated oration of Webster, in reply to 
Mr. Hayne, on the rights of the States, and the nature, 
interest, and glory of the Federal Union. It was a most 
discursive debate, a fact to which Mr. Livingston, on 
rising to speak, referred in the following humorous 
strain : — 

" The multiplicity and nature of the subjects that have 
been considered in debating a resolution with which none 
of them seem to have the slightest connection, and the 
addition of new subjects by which every speaker has 
thought it proper to increase the former stock, has given 
me, I confess, some uneasiness. I feared an irruption 
of the Cherokees, and was not without apprehensions 
that we should be called on to terminate the question of 
Sunday mails ; or, if the Anti-Masonic Convention should 
take offence at the secrecy of our executive session, or 
insist on the expulsion of all the initiated from our coun- 
cils, that we should be obliged to contend with them for 
our seats. Indeed, I had myself serious thoughts of in- 
troducing the reformation of our National code, and a plan 
for the gradual increase of the navy, and am not yet 
quite decided whether, before I sit down, I shall not urge 



SENATOR OF THE UNITED STATES. ggj 

the abolition of capital punishments. In truth, Mr. Presi- 
dent, the whole brought forcibly to my recollection an 
anecdote told in one of the numerous memoirs written 
during the reign of Louis XIV., too trivial, perhaps, to 
be introduced into this grave debate, but which, perhaps, 
may be excused. A young lady had been educated in 
all the learning of the times, and her progress had been 
so much to the satisfaction of the princess who had di- 
rected her studies, that, on her first introduction, her 
patroness used to address her thus: 'Come, Mademoiselle! 
discourse with these ladies and gentlemen on the subject 
of theology; so, that will do. Now talk of geography; 
after that, you will converse on the subjects of astronomy 
and metaphysics, and then give your ideas on logic and 
the belles-lettres.' And thus the poor girl, to her great 
annoyance, and the greater of her auditors, was put 
through the whole circle of the sciences in which she 
had been instructed. Sir, might not a hearer of our 
debates for some days past have concluded that we, too, 
had been directed in a similar way, and that you had 
said to each of the speakers, ' Sir, please to rise and 
speak on the disposition of the public lands ; after that, 
you may talk of the tariff; let us know all you think on 
the subject of internal improvement ; and, before you sit 
down, discuss the powers of the Senate in relation to ap- 
pointments, and the right of a State to recede from the 
Union ; and finish by letting us know whether you ap- 
prove or oppose the measures of the present, or the six 
preceding administrations'?' The approximation, Sir, of 
so many heterogeneous materials for discussion must 
provoke a smile ; and most of those who have addressed 
you, while they lamented that subjects unconnected with 
the resolution had been introduced into debate, rarely 
sat down without adding to the number. For my own 



S32 LIFE OF EDWARD LIVINGSTON. 

part, I think the discussion may be turned to useful pur- 
poses. It may, by the interchange of opinion, increase 
our own information on all the important points which 
have been examined, while, not being called on for a vote, 
we may weigh them at leisure, and come to a conclusion, 
without being influenced by the warmth of debate." 

Nevertheless the speaker proceeded to follow in some 
degree the general example of digression, and to discourse 
upon some topics not immediately relevant to the point 
of Mr. Foot's resolution, though confining himself strictly 
to responding to what had fallen from others in the course 
of the discussion. One of these digressions was the fol- 
lowing very full and thorough vindication of himself and 
his colleagues, including General Jackson, for their vote, 
mentioned in the fifth chapter of this volume, against the 
address of Congress to Washington, as prepared and 
insisted upon by the Federalist majority of the time : — 

" I have given you, Sir, so much of the history and 
state of parties as was necessary for the understanding 
of the refutation I must make of a charge brought 
against me and those with whom it was my happiness 
to associate, and will always be my pride to have acted, 
hi those times. I repeat the charge, verbatim, from 
the printed speech of the senator from Massachusetts 
(Mr. Webster). Speaking of the merits of New Eng- 
land, which I, at least, have never attempted to lessen, 
he says he ' will not rake into the rubbish of by-gone 
times to blot the escutcheon of any State, any party, or 
any part of the country ; ' yet. Sir, in the same page, 
he endeavors to fix a blot of the blackest ingratitude 
on a party, on men (I do not speak. Sir, of myself) 
who have rendered most important services to the coun- 
try, to one of whom it has given the highest mark of its 
confidence and esteem, and all of whom were, in the 



SENATOR OF THE UNITED STATES. QQQ 

transaction alluded to, much more sinned against than 
sinning-. The honorahle gentleman goes on to say : 
' General Washington's administration was steadily and 
zealously maintained, as we all know, hy New Eng- 
land. It was violently opposed elsewhere. We know 
in what quarter he had most earnest, constant, and 
persevering support in all his great and leading meas- 
ures. W^e know where his private and personal char- 
acter was held in the highest degree of attachment and 
veneration ; and we know, too, where his measures were 
opposed, his services slighted, and his character vilified. 
We know, or we might know, if we turn to the journals, 
who expressed respect, gratitude, and regret, when he 
retired from the chief magistracy, and who refused to 
express respect, gratitude, or regret ; I shall not open 
these journals.' 

" Sir, the honorable gentleman would have done well 
to open the journals, or not to have referred to them. 
If he had opened them, he would have found the name 
of the individual who addresses you arrayed with those 
of men more worthy of note, in the vote to which he 
alludes. If he had opened the debates which led to that 
vote, as I think he ought to have done, he would have 
seen how utterly void of foundation is the charge he has 
brought. I do not think the gentleman intended any per- 
sonal allusion to me ; the terms of civility on which we 
are, forbid it; the consciousness of having said nothing 
to provoke the attack, forbids it : but. Sir, the individual 
who cannot arrogate to himself sufficient importance to 
justify the supposition that he was the object intended, 
was, at that time, the representative, the sole represent- 
ative, of the first commercial city in the Union. That 
individual is now one of the members of this body, rep- 
resenting a sovereign State. He owes it, therefore, to 



S34f LIFE OF EDWARD LIVINGSTON. 

those who have offered him these marks of their confi- 
dence to show that they were not unworthily bestowed ; 
he ovves it to himself to disprove the reflection which the 
allegation casts on his character. Suffer me, also, Mr. 
President, to remark that this very charge was used 
during the late election ; and that the refutation I am 
about to give was so widely diffused that it is somewhat 
sinsfular it should never have come to the senator's 
knowledge, or that he should have forgotten it if it had. 
Yet one or the other must have been the case, or he would 
not now have repeated the tale, nor, by incorporating it 
in his eloquent harangue, have given new currency to a 
refuted calumny which had long before been nailed to 
the counter. • Since the honorable gentleman believes 
the story to be true, and surely he would not otherwise 
repeat it, hundreds of others nmst give it the like credit; 
and it increases the obligation I am under to explain all 
the circumstances attending it. 

" I have shown, Sir, what were the doctrines and 
measures of the Federal party at that time ; during tlie 
whole of the presidency of Washington they were pre- 
dominant in both Houses; and as Washington was the 
head of the government, one of their greatest objects 
was to cover all their proceedings with the popularity 
of his name, to represent all opposition to their measures 
as personal hostility to him, and to force the Republican 
party either to approve all their measures, or, by oppos- 
ing them, incur the odium of being unfriendly to the 
Father of his Country. In this they were for the most 
})art defeated. The universal confidence reposed in the 
high character of Washington, the gratitude felt for his 
services, the veneration for his name, had practically pro- 
duced the effect, in our government, which a constitu- 
tional maxim has in that of England. He could not, it 



SENATOR OF THE UNITED STATES. QS5 

was believed, do wrong- ; most certainly he never meant 
wrong ; most certainly his ardent wishes were for the 
happiness of the country he had conducted through so 
many perils, and the preservation of that form of gov- 
ernment which had been adopted under his auspices. 
Yet measures were adopted, during his presidency, 
which a very large proportion of the country thought 
injurious to their interests, and, on one occasion, a ma- 
jority of their representatives deemed them to be an 
infringement on their privileges. None of these were 
ascribed to the President ; a practice which he intro- 
duced enabled us to ascribe to his administration (to 
which in truth they belonged) all the measures of which 
we disapproved. The practice alluded to was that of 
assembling the Heads of Department in a Cabinet Coun- 
cil, and being guided, as was generally understood, by 
the opinion of a majority in all important concerns. 
Hence the official acts of the President came to be con- 
sidered as those of his Cabinet, and were, in common 
parlance, called the acts of the administration ; and they 
were opposed, when it was deemed necessary, and can- 
vassed, and freely spoken of hi debate, without any hos- 
tility being felt, or supposed to be felt, towards the 
President. Indeed, several of those most prominent in 
opposition to acts of the administration were men for 
vi^hom Washington had the highest esteem, and who 
were among those who most admired and revered hm. 

" Of the acts to which the Republican party were op- 
posed it may* be necessary to specify some, in order to 
show that the opposition was not a frivolous or a per- 
sonal one. 

" The Chief Justice of the United States uas sent as 
a Minister Plenipotentiary to England, while he held 
his judicial office, which he retained until after his re- 



336 LIFE OF EDWARD LIVINGSTON. 

turn ; thus, in our opinion, blending tlie Executive and 
Judicial departments, directed by the Constitution to be 
separated, and setting an example which might create 
an undue influence on the bench, in favor of the Ex- 
ecutive. 

" This minister negotiated a treaty which contained 
stipulations requiring the agency of the House of Rep- 
resentatives, in the exercise of their constitutional powers 
over the subject of them, to carry into effect. To enable 
them discreetly to exercise these powers, the House re- 
spectfully requested the communication of such papers, 
in relation to the treaty, as could, without injury to our 
foreign relations, be made public. This request the 
President was advised to refuse ; and the refusal was 
grounded on a denial of the constitutional right of the 
House to exercise any discretion in carrying the treaty 
into effect. On this refusal, the House of Representa- 
tives passed a resolution declaratory of the right which 
the President had denied. I will not trouble the Sen- 
ate with adverting to any other measures which I, and 
those who acted with me, opposed. We opposed them, 
Sir, without, in any instance, forgetting the sentiments 
of respect, gratitude, and high admiration, which were 
due to the name and character of Washington. We be- 
lieved that it would have been a dereliction of duty to 
give up the independent expression of our opinion, be- 
cause it was contrary to measures falsely ascribed to a 
name we revered ; and conscious of the weight of that 
name, I may, without vanity, say there was some de- 
gree of merit in stemming the tide of popularity that was 
attached to it. 

" The mission of Mr. Jay took place after the second 
election of General Washington, and the discussions on 
the treaty in the first session of the fourth Congress, the 



SENATOR OF THE UNITED STATES. 



387 



seventh year of his Presidency. In his speech on the 
opening of the second session of the same Congress, (I 
repeat, Sir, what I formerly wrote on this occasion,) he al- 
luded in aSecting terms to his approaching retirement from 
office. I can solemnly say for myself, that, on this occa- 
sion, so far from any ill feeling towards the President, 
none among those who arrogated to themselves the title 
of his exclusive friends could feel more sincerely, or were 
more disposed to express every sentiment of gratitude 
for his services, admiration for his character, or wishes 
for his happiness, than I was. These were ideas that 
had grown up with me from childhood. I had never 
heard the name of Washington pronounced but with 
veneration by those near relatives who were engaged with 
him in the same perilous struggle. Independence, liberty, 
and victory, were associated with it in my mind; and 
the awful admiration which I felt when, yet a boy, I was 
first admitted to his presence, yielded only to the more 
rational sentiments of gratitude and national pride, when, 
at a maturer age, I could appreciate his services, and 
estimate the honor his virtues and character had conferred 
on the nation. I had seen him in the hour of peril, when 
the contest was doubtful, and when his life and reputa- 
tion, as well as the liberties of the country, depended on 
the issue. I had seen him in the moment of triumph, 
when the surrender of a hostile army had secured that 
independence. My admiration followed him in his first 
retreat, and was not lessened by his quitting it to give the 
aid of his name and influence to the union of the States 
under an efficient government. In addition to this, he 
had received me with kindness in my youthful visits to 
his camp ; and, without having it in my power to boast 
of any particular intimacy, circumstances had thrown me 
frequently in the way of receiving from him such atten- 

43 



338 LIFE OF EDWARD LIVINGSTON. 

tions as indicated some degree of regard. With these 
motives for joining in the most energetic expressions of 
gratitude, with a heart filled with sentiments of veneration, 
and desirous of recording them, my concern can scarcely 
be expressed, when I found that I must be debarred from 
joining my voice with those of my fellow-citizens in ex- 
pressing those feelings, unless in the same breath I 
should pronounce a recantation of principles which I 
then thought, and still think, were well founded, and 
declare that I approved measures which I had just sol- 
emnly declared I thought injurious to the country. 

" Thus, Sir, it was contrived. At that period the 
President opened the session by a speech, (the more 
convenient mode of sending a message having been in- 
troduced five years afterwards by Mr. Jefferson,) and 
the House made an answer, which they presented in a 
body. The answer on this occasion was most artfully 
and most ably drawn. It was the work of a Federal 
committee, and was supported by a Federal majority. 
It contained, as it ought to have contained, every ex- 
pression that gratitude, veneration, and affectionate re- 
gret could suggest ; and to the adoption of these there 
would not have been a dissenting voice ; it would have 
been carried, not only unanimously, but by acclamation. 
But the dominant party had other views : it was to be 
made the instrument of degrading their opponents, if 
they could vote for it, or of holding them up to all pos- 
terity as opposers of the Saviour of his Country, if they 
refused to pronounce their own condemnation. They pre- 
ferred a paltry party triumph to the glory of the man 
tiiey professed to honor, and deprived him of the expres- 
sion of an unanimous vote, that they might have some 
pretence to stigmatize their opponents with ingratitude. 
The press, Sir, the omnipotent press, and the publicity 



SENATOR OF THE UNITED STATES. 



339 



of our debates, have enabled me, even at this distant day, 
to defeat this unworthy end, — unworthy of the honor- 
able men who contrived and executed it, and which noth- 
ing but the excitement of party could have suggested to 
them. 

" To understand this fully. Sir, I should read to you 
the whole of the address. Its general character I have 
stated. But I will confine myself to one or two passages, 
which show what was endeavored to be forced upon us, 
and the amendments offered will show what we were 
willing to say; and I will then ask who it was that 
refused a unanimous expression of gratitude, respect, and 
merit. 

" The debates of that period were very concisely taken 
down, but (in Carpenter's Debates, p. 62J we find enough 
for our purpose. It is there stated that Mr. Livingston 
expressed his sorrow 'that the answer was not so drawn 
as to avoid this debate, and his sincere hope that parties 
would so unite as to make it agreeable to all. He moved 
some amendments, first, to correct an error in the phrase- 
ology, which were adopted, and, in the course of his 
remarks, used these expressions : " He hoped, not^vith- 
standing the tenacity of adherence to words, that all might 
agree in the address ; he would be extremely hurt, he 
said, could he conceive that tve differed in sentiments of 
gratitude and admiration for that great man ; but, while 
he was desirous to express this, he could not do it at the 
expense of his feelings and principles. The former he 
might sacrifice, but the latter he could not to any man.'" 

" I invite the particular attention of the Senate to the 
passage which I proposed to alter as it stood in the ad- 
dress ; it was in these words : — 

"'And while we entertain a grateful conviction that 
your w{se.i firm, and patriotic administration has been 



34-0 LIFE OF EDWARD LIVINGSTON. 

signally conducive to the success of the present form of 
government, we cannot forbear to express the deep sen- 
sations of REORET with which we contemplate your in- 
tended retirement from office.' Now. Sir, mark wliat 
were the words objected to in this sentence ; bear in mind 
the distinctions that liave been drawn between the char- 
acter ot^ the President and that of his (((fmiiiisfration ; 
remember what was the sense in which that word was 
universally used at the day ; recollect, too, what I have 
just said of the opposition to one of the leading measures 
of that admin f-stratioih — and you will then be enabled to 
judge whether I, and those ^^^th whom I acted, could 
give our assent to this passage as it stood. To show, 
however, that, while we could not. with consistency or 
truth, say that the measures of the cabinet were wise 
and patriotic, we were perfectly willing to use these 
epithets as applied to the President, I moved to strike 
out the words 'wise, tirm. and patriotic administration,' 
and insert 'your wisdom, tirmness, and patriotism;' the 
sentence then would have read thus : * while we enter- 
tain a gratefnl conviction that i/our wisdom., firmness., 
and patriotism have been signally conducive to the suc- 
cess of the present form of government, we cannot for- 
bear to express the deep sensations of regret with 
which we contemplate your intended retirement from 
office.' Now. Sir, compare this clause, wliich we were 
all readv to vote for, and did vote for. with that which 
was supported by the majority, and say which of them 
expresses the greatest veneration for the person and 
the personal character of Washington, that which as- 
cribes wisdom, firmness, and patriotism to the meas- 
ures of his cabinet, or that which attaches them to him- 
self. Sav whether we refused to express regret at his 
retirement, when that word, accompanied by an epi- 



I 



SENATOR OF THE UNITED STATES. g^l 

thet most expressive of its intensity, is readily adojjted. 
Say who were the real friends to the glory of our great 
leader in war and director in peace, those who, for a 
paltry party triumph, deprived him of an unanimous ex- 
pression of thanks and admiration, who forced him to ap- 
pear rather as the chief of a party than in his true charac- 
ter of the man uniting all affections, regretted, beloved, 
venerated by all his fellow-citizens, or those who intreated 
that, on this occasion at least, party considerations should 
be laid aside, and that they might be permitted to join 
their voice to that of their country, and of the world, in 
expressing the sentiments with which their hearts were 
filled. Say, finally, Sir, whether the senator from Mas- 
sachusetts is justified in the allegation, that we refused 
to express respect, gratitude, and regret, on the retire- 
ment of Washington ; or what is more than insinuated, 
that we slighted his services and vilified his character. 
Sir, the register I have quoted shows, that I supported 
my amendment by expressing the very sentiments you 
have just heard; and I must add, that, shortly after this 
transaction, while my votes, speeches, and, conduct were 
fresh in the recollection of my constituents, my term of 
service expired, and I was reelected by an increased ma- 
jority. Would a man entertaining the sentiments of 
Washington that have been ascribed to me have received 
the votes of a city where his name was adored ^ Nay, 
more. Sir ; one of the most conspicuous of those who have 
incurred the reproach of the senator from Massachusetts, 
and for whose sole use it was perhaps designed, — the 
President of the Cnited States, — was not long since se- 
lected by the veteran reliques of the Revolutionary ^\ ar, 
the chosen companions in arms of their venerated com- 
mander, the New York Society of Cincinnati, as one of 
the very few honorary members upon whom that distinc- 



34^ LIFE OF EDWARD LIVINGSTON. 

tion has been bestowed. They have, since that, done me 
the same honor. Would the venerable remnant of the 
friends and companions of Washington, associated under 
his auspices for the purpose of cherishing the friendships 
contracted during the contest he so gloriously conducted, 
and watching over his fame, so inseparably connected 
with their own — would they have conferred this dis- 
tinction on two men, who had, at any period of their 
lives, shown themselves his enemies or detractors ? Me, 
Sir, they knew from my childhood ; my whole life was 
before them. At the time these votes were given I was 
their immediate representative. Many of them were op- 
posed to me in the politics of the day ; but they knew my 
conduct to have been such as I have described, and they 
did justice to my motives, and most assuredly would not 
have joined in my unanimous association to their honor- 
able body, had they doubted the purity of either." 

On the same occasion Mr. Livingston expressed, in 
the following passage, his apprehensions on account of 
the visible growth of party spirit : — 

"These, Mr. President, were some of my reasons for 
speaking of the history of party under our government. 
I had another. It was to mark the difference between 
the necessary, and, if I may so express it, the legitimate 
parties existing in all free governments, founded on dif- 
ferences of opinion in fundamental principles, or an at- 
tachment to, or dislike of, particular measures and par- 
ticular men, — between these and that spirit of dissension 
into which they are apt to degenerate ; to throw the 
weight of my experience, and the little my opinions may 
have, in the scale, and lift up a warning voice against 
the indulgence of the passions which lead to it, the 
allusions that irritate, the personal reflections that em- 
bitter debate, and the altercations that debase it. The 



SENATOR OF THE UNITED STATES. 34.3 

spirit of which I speak originates in the most trifling as 
well as the most important circumstances. The liberties 
of a nation or the color of a cockade are sufficient to ex- 
cite it. It creates imaginary, and magnifies real causes 
of complaint ; arrogates to itself every virtue, denies 
every merit to its opponents ; secretly entertains the 
worst designs, publicly imputes them to its adversaries; 
poisons domestic happiness with its dissensions ; assails 
the character of the living with calumny, and, invading 
the very secrets of the grave with its viperous slanders, 
destroys the reputation of the dead ; harangues in the 
market-place ; disputes at the social board ; distracts 
public councils with unprincipled propositions and in- 
trigues ; embitters their discussions with invective and 
recrimination, and degrades them by personalities and 
vulgar abuse ; seats itself on the bench ; clothes itself in 
the robes of justice ; soils the purity of the ermine, and 
poisons the adminstration of justice in its source ; mounts 
the pulpit, and, in the name of a God of mercy and 
peace, preaches discord and vengeance ; invokes the worst 
scourges of Heaven, war, pestilence, and famine, as 
preferable alternatives to party defeat: blind, vindictive, 
cruel, remorseless, unprincipled, and at last frantic, it 
communicates its madness to friends as well as foes ; re- 
spects nothing, fears nothing ; rushes on the sword ; 
braves the dangers of the ocean ; and would not be 
turned from its mad career by the majesty of Heaven 
itself, armed with its tremendous thunders. The tris- 
tes tree of the poet, — 

' quas neqiie Noricus 
Deterret ensis, nee mare naufragum, 
Nee saevus ignis, nee tremendo 
Jupiter ipse ruens tumultu ; ' 

and to which, with an elegance of expression and pro- 



344 LIFE OF EDWARD. LIVINGSTON. 

fundity of thought rarely united, he ascribes the ruin of 
repubhcs, — 

' et altis urbibus ultimae 
Stetere causae cur perirent 
Funditus, imprimeretque muris 
Hostile aratrum exercitus insolens.' 

" Yes, Sir, the poet tells us true. These few lines con- 
tain a most important lesson. Not long before he wrote 
them, there existed a confederacy of independent States, 
united, as ours are, by the same religion, language, man- 
ners, and laws. Fair cities, adorned with noble edifices, 
decorated by the miracles of the imitative arts, governed 
by wise magistrates, and defended by intrepid warriors, 
where sages gave lessons of morahty and wisdom, poured 
forth their numerous inhabitants at stated seasons to 
assist at solemn games, where poets sung, and histo- 
rians read their instructive pages, to admiring crowds ; 
where the young contended for the prize of agility or 
strength, and the old recounted their former exploits ; 
where the wisdom and valor and talent and beauty of 
each State were the boast and pride of the whole. What 
followed ? Civil dissension breathed its poisonous influ- 
ence over them, and they met to contend, not for the 
peaceful prizes of dexterity or genius, but in the deadly 
strife of civil war. Where are their magnificent temples, 
their theatres, their statues of gods and heroes'? They 
have vanished ; they have been swept by the besom of 
destruction ! The ploughshare of devastation has been 
driven over their walls, and their mighty ruins remain 
as monumental warnings to free States, of the danger of 
falling into the excess of party rage." 

The remainder of this speech was devoted principally 
to an elaborate defence of the policy and action of the 
President against assaults made upon them, in the course 



SENATOR OF THE UNITED STATES. 345 

of the debate, by several senators, and to a no less elab- 
orate exposition of Livingston's views of the Constitution, 
and the theory of the Federal Government, of which the 
following is a resume, in his own words : — 

" I think that the Constitution is the result of a com- 
pact entered into by the several States, by which they 
surrendered a part of their sovereignty to the Union, 
and vested the part so surrendered in a General Govern- 
ment. 

" That this Government is partly popular, acting di- 
rectly on the citizens of the several States, partly fed- 
erative, depending for its existence and action on the 
existence and action of the several States. 

" That by the institution of this Government the States 
have unequivocally surrendered every constitutional right 
of impeding or resisting the execution of any decree or 
judgment of the Supreme Court in any case of law or 
equity between persons or on matters of whom or on 
which that court has jurisdiction, even if such decree or 
judgment should, in the opinion of the States, be uncon- 
stitutional. 

" That, in cases in which a law of the United States 
may infringe the constitutional right of a State, but which, 
in its operation, cannot be brought before the Supreme 
Court, under the terms of the jurisdiction expressly given 
to it over particular persons or matters, that court is not 
created the umpire between a State that may deem itself 
aggrieved and the General Government. 

"• That, among the attributes of sovereignty retained 

by the States is that of watching over the operations 

of the General Government, and protecting its citizens 

against their unconstitutional abuse ; and that this can 

be legally done, — 

" First, in the case of an act in the opinion of the State 
44 



S4:6 LIFE OF EDWARD LIVINGSTON. 

palpably unconstitutional, but affirmed in the Supreme 
Court in the legal exercise of its functions, — 

"By remonstrating against it to Congress; 

"By an address to the People in their elective functions 
to change or instruct their representatives ; 

" By a similar address to the other States, in which 
they will have a right to declare that they consider the 
act as unconstitutional and therefore void ; 

" By proposing amendments to the Constitution in the 
manner pointed out by that instrument ; 

" And, finally, if the act be intolerably oppressive, and 
they find the General Government persevere in enforc- 
ing it, by a resort to the natural right which every people 
have to resist extreme oppression. 

" Secondly, if the act be one of those few which in 
their operation cannot be submitted to the Supreme Court, 
and be one that will, in the opinion of the State, justify 
the risk of a withdrawal from the Union, that this last 
extreme remedy may at once be resorted to. 

" That the right of resistance to the operation of an act 
of Congress, in the extreme cases above alluded to, is 
not a right derived from the Constitution, but can be 
justified only on the supposition that the Constitution has 
been broken, and the State absolved from its obligation ; 
and that, whenever resorted to, it must be at the risk of 
all the penalties attached to an unsuccessful resistance to 
established authority. 

" That the alleged right of a State to put a veto on the 
execution of a law of the United States which such State 
may declare to be unconstitutional, attended (as, if it exist, 
it must be) with a correlative obligation on the part of 
the General Government to refrain from executing it, 
and the further alleged obligation on the part of that 
Government to submit the question to the States by 



J 



SENATOR OF THE UNITED STATES. $¥/[ 

proposing aniendmeiits, are not given by the Constitu- 
tion, nor do they grow out of any of the reserved 
powers. 

" That the exercise of the powers last mentioned, would 
introduce a feature in our Government, not expressed in 
the Constitution, not implied from any right of sover- 
eignty reserved to the States, not suspected to exist by 
the friends or enemies of the Constitution when it was 
framed or adopted, not warranted by practice or contem- 
poraneous exposition, nor implied by the true construc- 
tion of the Virginia resolutions in '98. 

" That the introduction of this feature in our Govern- 
ment would totally change its nature, make it inefficient, 
invite to dissension, and end, at no distant period, in sep- 
aration ; and that, if it had been proposed in the form 
of an explicit provision in the Constitution, it would have 
been unanimously rejected, both in the Convention which 
framed that instrument, and in those which adopted it. 

" That the theory of the Federal Government being the 
result of the general will of the People of the United 
States in their aggregate capacity, and founded, in no 
degree, on compact between the States, would tend to 
the most disastrous practical results ; that it would place 
three fourths of the States at the mercy of one fourth, 
and lead inevitably to a consolidated Government, and 
finally to monarchy, if the doctrine were generally ad- 
mitted, and if partially so, and opposed, to civil dis- 
sension, 

" These being my deliberate opinions on the nature and 
consequences of the constructions hitherto given of the 
Federal compact, and the obligations and rights of the 
States under it, deeming those constructions erroneous, 
and in the highest degree dangerous to the Union, I felt 
it a duty to my place and to my country to say so." 



348 LIFE OF EDWARD LIVINGSTON. 

In conclusion of this speech, Mr. Livingston, having 
alluded to the interior marble columns of the chamber of 
the House, composed of variegated pebbles united by a 
natural, calcareous cement, exclaimed : — 

" What were they originally 1 Worthless heaps of 
unconnected sand and pebbles, washed apart by every 
wave, blown asunder by every wind. What are they 
now ? Bound together by an indissoluble cement of na- 
ture, fashioned by the hand of skill, they are changed 
into lofty columns, the component parts and the support 
of a noble edifice, symbols of the union and strength 
on which alone our government can rest, solid within, 
polished without ; standing firm only by the rectitude of 
their position, they are emblems of what senators of the 
United States should be, and teach us that the slightest 
obliquity of position would prostrate the structure, and 
draw with their own fall that of all they support and 
protect, in one mighty ruin. 

" A distrust of the justice and good feeling of one part 
of the Union by another is a most dangerous symptom ; 
it ought not to be indulged even when occasional circum- 
stances justify it. A distrust of the justice of the whole 
is still more fatal. How can we hope for ready obe- 
dience to our laws, if the people are taught to believe in 
a permanent hostility of one part of the Union towards 
another, and that every appeal made by reason and ar- 
gument to their common head is vain 1 Perseverance 
will do much ; for even if the illustration which has been 
made of party obduracy were just, we should remem- 
ber that the hardest marble is worn by a succession of 
drops ; much more may we hope that prejudice, however 
strong, will yield to the claims of justice, frequently en- 
forced by a repetition of sound argument. 

" Menace is unwise, because it Is generally inefi'ectual ; 



SENATOR OF THE UNITED STATES. 



349 



and of all menaces, that which strikes at the existence of 
the Union is the most irritating. Have those who thus 
rashly use it, who endeavor to familiarize the people to 
the idea, have they themselves ever done what they 
recommend ? Have they calculated, have they consid- 
ered, what one, two, or three States would be, disjointed 
from the rest 1 Are they sure they would not be dis- 
jointed themselves ] That parts of any State, which 
might try the hazardous experiment, might not prefer 
their allegiance to the whole ? Even if civil war should 
not be the consequence of such disunion, — an exemption 
of which I cannot conceive the possibility, — what must be 
the state of such detached parts of the mighty whole "? 
Dependence on foreign alliances for protection against 
brothers and friends ; degradation in the scale of nations; 
disposed of by the protocols of allied monarchs to one of 
their dependants, like the defenceless Greeks. But I will 
not enlarge on this topic, so fruitful of the most appalling 
apprehensions. Disunion! the thought itself, — the means 
by which it may be effected, — its frightful and degrading 
consequences, — the idea, the very mention of it, ought 
to be banished from our debates, from our minds. 
God deliver us from this worst, this greatest evil. All 
others we can resist and overcome ; encroachments on 
individual or State rights cannot, under our representa- 
tive government, be long or oppressively persevered in. 
There are legitimate and effectual means to correct any 
palpable infraction of our Constitution. Try them all 
before recourse is had to the menace of this worst of 
evils. But when an honest difference of construction 
exists, surely such extreme means or arguments ought 
not to be resorted to. Let the cry of unconstitutional 
oppression be justly raised within these walls, and it will 
be heard abroad, — it will be examined; the people are 



350 LIFE OF EDWARD LIVINGSTON. 

intelligent, the people are just, and in time these char- 
acteristics must have an effect on their Representatives. 
But let the cry of danger to the Union be heard, and it 
will be echoed from the White to the Rocky Mountains ; 
every patriotic heart will beat high with indignation ; 
every hand will draw a sword in its defence. Let the 
partisans on either side of this argument be assured that 
the people will not submit to consolidation, nor suffer 
disunion ; and that their good sense will detect the fallacy 
of arguments which lead to either. 

" Sir, I have done. I have uttered the sincere dictates 
of my best judgment, on topics closely connected with 
our dearest interest. I have, because it was my duty, 
uttered them freely, — without reserve, but I hope with- 
out offence ; with the respect that was due . to the opin- 
ion of others, and with a becoming diffidence of my own. 
It would be a cause of great regret if I should have mis- 
apprehended the tendency of any of the doctrines of which 
I have spoken. It would have been a greater, if, think- 
ing of them as I do, I had omitted the animadversions ,, 
which I thought their consequences required. -y 

"Gentlemen have spoken, with patriotic enthusiasm, of 
the consolation they would receive, at their last moments, 
in seeing the flag of their country display to their dying 
eyes its emblems of union and glory. The period when 
mine must be closed in night is too near to refer to it 
the duration of my country's happiness. But I can an- * 

ticipate for that beloved country a continuance of free- 
dom and prosperity long after the distant, I hope the 
far distant day, when the last of those honorable men 
shall have finished his useful career. I can apprehend 
for it the worst of evils before any one of them shall 
quit the stage. These hopes are founded on the exer- 
tions of active and enlightened patriotism to preserve 



SENATOR OF THE UNITED STATES. 351 

the Union ; these fears, on the madness of party that 
may destroy it." 

It was during Mr. Livingston's senatorial term, and 
in the Congressional vacations, that some correspondence, 
with an exchange of their respective works, occurred be- 
tween him and Jeremy Bentham. A portion of the cor- 
respondence has appeared in the valuable edition of Ben- 
tham 's works published by his executor, Bowring. Some 
passages from Livingston's part of it have already been 
quoted or referred to in this volume. The following is 
the close of one of Bentham's letters, — of which the 
first part is printed by Bowring, — dated February 23, 
1830, and the original of which is now lying before me, 
written upon thick paper of the foolscap size, with wide 
margins ruled off, spread over fourteen pages, in which 
the venerable writer appears to have had the assistance 
of both his secretaries, though winding it up with his 
own hand : — 

" What shall we say of these scholars of the school 
called the Historical 1 To find a parallel for them, we 
must suppose the scene to lie in a private family. Prob- 
lem to be solved, what shall be served up for .dinner. In- 
stead of saying to the cook, Give us a rump of beef 
to-day, with a plum-pudding, says the mistress to her, 
Look back to the housekeeping-book, as many years of it 
as you can find, as likewise to the housekeeping-books of 
our next-door neighbors to the right and left, as many 
of them as you can get a sight of; this done, it will 
be your business to guess, not mine to tell you, what it 
is I wish to have for dinner. 

" Not that the cook would have any great objection to 
this substitute for a command, if her wages were to go 
on increasing in proportion to the number of housekeep- 



S52 LIFE OF EDWARD LIVINGSTON. 

ing-books in which the search was made, and the length 
of time occupied in making it ; and here, too, let any 
one say whether the parallel does not hold good ? How 
opposite soever to common sense, would not this be al- 
together apposite to common law ? 

" I am, Sir, with the 

" sincerest respect, yours, 

"Jeremy Bentham. 

" To Edward Livingston, 
" Senator from Louisiana. 

" I hope this copy contains no material errors. The 
original scrawl would have been illegible. Neither time 
nor eyes admit of revision." 

Mr. Livingston continued to discharge assiduously the 
ordinary duties of a senator, till the close of the second 
session in March, 1831. On the second of that month, 
the bill for the relief of James Monroe being under 
discussion, he repeated the substance of what he had 
said on the same bill while a member of the House, by 
way of protest against the claim put forth, on behalf of 
the ex-President, for the merit of services in the pur- 
chase of Louisiana which had really been rendered by 
Mr. Livingston's late brother. 

But a task that still occupied the best part of his 
thoughts and labor was the adaptation of his system of 
penal law to the wants of the Federal Government, with 
a view to its adoption by Congress. At the first session 
after he entered the Senate he brought in a bill with 
that object, and gave notice that he would press the 
subject upon the attention of Congress at the next ses- 
sion. Accordingly, on the 3d of March, 1831, he 
moved for leave to bring in his bill, which was granted. 
The code thus proposed was the same in substance as 



SENATOR OF THE UNITED STATES. 353 

that prepared for Louisiana, with such modifications as 
the peculiar structure of the General Government ren- 
dered necessary. In introducing the system, he asked 
the particular attention of senators to two of its features, 
— provisions for defining and punishing, by positive law, 
ofiences against the law of nations ; and the total aboli- 
tion of the penalty of death, — "in order that they might 
be prepared to meet the discussion which he should think 
it a duty to invite at the next session." 

The work was printed by the Senate, for further con- 
sideration ; but at the coming session the author had 
ceased to be a senator, and the subject has not been 
again taken up by Congress. 

Whilst Livingston was a member of the Senate, it 
was clearly proved, in more than one instance, that, 
closely and long identified by personal and political 
relations as he and Jackson, in general, had been, 
neither of them was capable of being blindly led by the 
other, in matters of principle or of conduct. When, in 
May, 1830, the President vetoed the Maysville Road 
bill and the Washington Turnpike bill, under the con- 
viction, sharply expressed, of the unconstitutionality of 
those measures, their reconsideration by Congress took 
place. The last-named of these bills having originated 
in the Senate, the vetoing message was addressed to 
that body. We have already seen that Livingston ear- 
nestly believed this class of measures to be consistent with 
the Constitution, and he had voted for this particular 
improvement as expedient and wise. He now voted 
promptly, with the majority, but not two thirds of the 
Senate, in favor of passing the bill over the President's 
veto. 

And when Jackson desired to reward with an office 
the friendship and services of the unfortunate Henry Lee, 
45 



354^ LIFE OF EDWARD LIVINGSTON. 

whose notorious fault was one of the grosser violations 
of the code of domestic morals, Livingston — and it is 
the only act, seeming like one of stern severity, which 
my attentive study of his career has enabled me to at- 
tribute to him — voted against confirming the nomina- 
tion of the brilliant, but criminal, though perhaps contrite 
friend of the President. 



CHAPTER XVI. 

SECRETARY OF STATE. 

Montgomery Place — Mr. Livingston's Retirement for the Congres- 
sional Vacation of 1831 — A Summons to Washington — Dissolution of 
the Cabinet — The Secretaryship of State pressed upon Mr. Livingston — 
Letter to his Wife — Acceptance of the Office — His Views of the Po- 
sition — Letters — Foreign Transactions of the Government — Personal 
Characteristics of the Secretary of State — Anecdotes — Character and 
Influence 0/ Mrs. Livingston — Proceedings in the Senate on the Confir- 
mation of the Cabinet — Dignified Course of Mr. Livingston on that Oc- 
casion — Independent Conduct in Office — Course on the President's Bank 
Policy — Nullification — Draught of the Proclamation of December 10, 
1832 — Notes from the President to Mr. Livingston — Amendment of a 
Single Paragraph — The Growth of Mr. Livingston's Reputation abroad 
— Election to the Institute of France — The French Mission — Letter 
from Lafayette — Marriage of Mr. Livingston's Daughter — His Ap- 
pointment as Minister to France — De Tocqueville. 

TN 1828, Mr. Livingston's eldest sister, the venerated 
Janet Montgoniery, had died, bequeathing to him the 
bulk of her fortune, including her home, Montgomery- 
Place. Childless herself, she had looked upon her nephew 
Lewis as an adopted son, and had expected to make him 
her heir. His sad early death had diverted the bequest 
to his father. 

Montgomery Place is an estate of about three hundred 
acres, on the east bank of the Hudson, in the County of 
Dutchess. It is entered only — from a road parallel to 
and about a mile distant from the river — by a wide 
avenue, bordered with ancient trees, and winding over 
variedly sloping grounds, amongst a plentiful, half na- 
tive, half exotic shrubbery. The house, which Mrs. Mont- 



356 LIFE OF EDWARD LIVINGSTON. 

gomery erected about the beginning of the present cen- 
tury, is a large and jjlain mansion, overlooking, from 
the summit of a broad, high, and undulating lawn, the 
river, which there appears like a lake with islands and 
irregular bays, and in distinct view of the whole range 
of the Catskill Mountains. The northern and southern 
borders of the estate, together with the river-bank, here 
high and precipitous, are covered with their native for- 
ests. The northern boundary is a considerable stream, 
which rushes to the river over two precipices, of twenty 
and forty feet, and forms, in the woods of Montgomery 
Place, by an overflow between these falls, a beautiful 
lake and peninsula. The forest on this side is uneven 
and hilly, and is laid out in a labyrinth of foot-walks, 
with a variety of bridges and summer-houses. The 
wood of the southern side is devoted to the purpose of 
a private driving-ground. A carriage there passes, over 
a constantly changing road, two miles in extent, through 
lawn, opening, ravine, and thicket, obtaining here and 
there a glimpse of the river or of the mountains. 

To this retreat, but a few miles from his birthplace, — 
itself a memorial of affection and hallowed by many as- 
sociations, — Livingston retired in March, 1831, to be 
soon joined by his family, with a prospect of unaccus- 
tomed repose, to last until the opening of the next ses- 
sion, in December. I must now relate how suddenly 
and how soon this prospect was interrupted. 

Shortly after the 9th of April, whilst he was busy 
in the culture of trees, shrubs, and flowers, he received 
from the Secretary of State the following letter : — 

[" Strictly Confidential.] 

" My Dear Sir : We wish to see you here at the 
earliest practicable moment, on an affair of deep interest. 



SECRETARY OF STATE. Q^^ 

The President will be obliged if you will start the day 
after you receive this, under circuinstances which will 
serve to avoid speculation by preventing its being known 
that your destination is Washington. That may prob- 
ably be best done by giving out that you are going to 
Philadelphia. 

" The President desires me to say to you, that he will 
test your adaptation for the service that may be required 
of you by the secrecy and despatch of your movements 
on this occasion. 

" Lest you may have left town, I send a copy of this 
letter to our friend Bowne, who knows only that he is 
to see that you get it, and that he is to say nothing about 
it, an injunction which he will be sure to observe. Make 
my best respects to the ladies, and believe me to be, 

" Very truly yours, 

" M. Van Buren. 

" E. Livingston, Esq. 

" Washington, April 9, 1831." 

He obeyed the summons, observing the secrecy and 
haste enjoined, and amusing his very intimate friend, 
George M. Dallas, whom on his way he met at Phila- 
delphia, with a glowing account of some rose-buds which 
he was watching at home. Why he had been sent for 
he could form no probable surmise, till, on his arrival at 
Washington, he was told by the President and Secretary. 
The well-known dissolution of Jackson's first Cabinet was 
about to be precipitated, and Livingston was wanted to 
succeed the Secretary of State. This was an exigency 
which he would have been glad to have avoided, but 
which, after it had arisen, could not be lightly consid- 
ered or acted upon. He immediately wrote the follow- 
ing letter to his wife : — 



358 LIFE OF EDWARD LIVINGSTON. 

" Washington, Saturday night. 

'^ Guess until you are tired, my dear Louise, and you 
will not hit on the cause of my summons to this place. 
An offer is made to me of a place that would be the ob- 
ject of the highest ambition to every politician, — it is 
pressed upon me with all the warmth of friendship, and 
every appeal to my love of country. Yet it makes me 
melancholy, and, though I have not refused, I have not 
accepted. In short, to keep you no longer in suspense, 
I am offered the first place in an entire new Cabinet, 
with the exception of the P. M. G. V. B. has taken the 
high and popular ground, that, being a candidate for the 
Presidency, he ought not to remain in the Cabinet, when 
all the measures will be attributed to intrigue, and made 
to bear upon the President. He has, therefore, prevailed 
on the President to accept his resignation. I have, in 
an interview I have just had, requested time for con- 
sideration. The suddenness of the offer, my private ar- 
rangements, and, as a conclusive argument, the state of 
your health, which might, perhaps, oblige me to make a 
voyage. This last was answered ingeniously enough. 
Davezac should have leave to meet you at any port to 
which you might sail, and conduct you to Paris. At 
last, it was put on the footing that I should have as much 
time for deliberation as the present incumbent would con- 
sent to remain in office, but with a smart slap on the 
knee, 'My friend Livingston, you must accept.' And 
so we parted. I shall make no promise until we meet. 
The selection I think, except the first place, a good one. 
E. L., Sec'y of State; H. L. White, War; McLane, 
Treasury ; Woodbury, Navy ; Att'y-Gen'l, not decided 
as yet. All this is a profound secret, not even com- 
municated to C g. Therefore, give not the slightest 

hint, even to him. In addition to the reluctance to give 



SECRETARY OF STATE. 



359 



up my independence, I have serious doubts of my ability 
to fill the office with credit. I know nothing of the de- 
tails ; the political intrigues would worry me ; in short, 
I am perplexed. I must remain here, I think, until 
Tuesday. 

" In this, as in everything else, my dear wife, your 
happiness and that of my daughter shall be my first 
consideration. You may write to me in general terms, 
and direct to Head's at Philadelphia, for I shall be un- 
easy until I hear that this letter has been read and de- 
stroyed. 

" I embrace you tenderly and affectionately. 

"E. L." 

After returning home, he promptly decided on yielding 
to the President's wishes. He arrived at Washington 
on the 5th of May, and on the 24th entered upon his 
new office. The interval he passed at the department, 
in a laborious perusal of the late transactions of the prin- 
cipal missions. 

There was no affectation in the distrust which he ex- 
pressed of his own qualifications for his new duties, nor 
in the misgiving with which they were undertaken. In 
a letter to Governor Roman, of Louisiana, resigning the 
senatorial office, he declared, that, in exchanging a situ- 
ation which he had always thought more independent 
than any in the government, for one of greater labor, 
more responsibility, and greater exposure to obloquy and 
misrepresentation, he had neither consulted his interest 
nor ease, and still less his ambition, which was before 
perfectly satisfied ; but that he yielded to the wishes of 
those who, forming, he feared, a too favorable opinion 
of his powers, thought he could be more useful to the 
nation in the station to which he had been called. In 



360 LIFE OF EDWARD LIVINGSTON. 

the confidence of private friendship, he wrote to Mr. 
Dallas, — "I assure you, confidentially, I every day 
experience a greater regret that I could not have de- 
clined ; but now, le vin est iire^ and, whether the draught 
be bitter or sweet, il faut le hoire. At any rate, I prom- 
ise you, it will not intoxicate me." To his brother-in- 
law. General Armstrong, he wrote : — 

" I do not wonder at your hesitation whether to con- 
gratulate me or not. The same feeling made me reluc- 
tant to accept the place. I preferred the seat in the 
Senate. I was aware of the labor, the exposure to abuse, 
and the small opportunity of gaining any distinction, that 
I might expect in the Department of State. Yet such 
appeals were made to my feelings that I thought it a 
duty to yield. Very few will believe this; and therefore 
I do not generally take the trouble to make the expla- 
nation, and am content to appear as one of the many to 
whom the place is an object of high ambition." 

In a letter to Judge Carleton, dated the day of his in- 
duction into office, referring to his appointment, he said : — 

" You congratulate me upon it, as it is natural you 
should ; but I assure you, it was with great reluctance 
I agreed to accept the place. The labor I do not mind; 
but the renewal of all the abuse that party editors think 
it a part of their duty to rake up, the obligation to 
leave the delightful retreat in which I was grafting my 
trees, and watching the first swelling of the buds, when 
I received the summons to Washington, are but ill re- 
paid by any credit I can hope to obtain by the faithful 
execution of the duties of my place, in which the occa- 
sions of attracting the public attention are very rare. I 
had also just begun to be at ease in my senatorial chair, 
and learned to consider it as the most dignified and in- 
dependent situation in the country." 



SECRETARY OF STATE. 3gj 

The following passage from a letter to his wife, writ- 
ten after he had been a month in office, has the unmis- 
takable sound of audible thinking : — 

" Here I am in the second place in the United States, 
— some say the first ; in the place filled by Jefferson 
and Madison and Monroe, and by him who filled it be- 
fore any of them, — my brother ; * in the place gained by 
Clay at so great a sacrifice ; in the very easy-chair of 
Adams ; in the office which every politician looks to as the 
last step but one in the ladder of his ambition ; in the 
very cell where the great magician, they say, brewed his 
spells. Here I am without an effort, uncontrolled by any 
engagements, unfettered by any promise to party or to 
man ; here I am ! and here I have been for a month. I 
now know what it is ; am I happier than I was ? The 
question is not easily answered. Had the bait never been 
thrown in my way ; had I been suffered to finish the graft 
I had begun when your letter summoned me from the 
country; had I been permitted to stay and watch its growth 
until the fidl, to wander all the summer through the walks 
you had planned, to see my daughter improving in health 
and spirits, now and then to plan a picnic, or plague 
myself in the vain attempt to catch a trout, to have ex- 
claimed, on hearing of what happened here, ' Among them 
be it ! ' and taken the opinions of my two heads of depart- 
ments, Shoemaker on the crop of wheat, and Owen on 
the celery-bed, — could I have passed my summer thus, 
and taken my independent seat in the Senate during the 
winter, I could then have answered the question readily. 
But the temptation was thrown in my way ; the prize for 
which so many were contending was offered to me ; the 
acceptance of it was urged upon me ; if I had rejected 

* The Chancellor, who was Secretary of Foreign Affairs, during the 
Revolution, from 1781 to 1783. 

46 



SQ2 LIFE OF EDWARD LIVINGSTON. 

it, I think it would have been a source of regret that 
would have made me undervalue the real enjoyments for 
which I refused it, — such is human nature. But, as 
yet, I cannot form a proper judgment of the value 
of my place, — my wife and daughter have not been 
with me, and if the mental exercise and laborious at- 
tention it requires have enabled me to bear the solitude 
I am in, they will turn to positive enjoyment when you 
are with me ; for I now see that I can master the 
difficulties of the office, and although they will be in- 
creased during the session, if my health is preserved, I 
shall not fear them. 

" All this we have thought and said a hundred times ; 
why I repeat it I cannot tell, except that, running in my 
mind, it flowed from my pen, as all my other thoughts do 
when I write to you." 

Mr. Livingston, now in the sixty-eighth year of his 
age, was thus committed to cares and labors very differ- 
ent from the occupation of watching the growth of buds 
at Montgomery Place. The reader will hardly need to 
be told that the many state papers which now came from 
his pen were models of style and of political wisdom. In 
a letter to a young relative, written at this period, he said : 
" I work harder and walk farther and faster than any man 
in the administration ; and by bathing in cold water every 
morning, I keep up my spirits and my health. Come and 
see how rosy it makes me." 

It was, indeed, for the director of the government's 
foreign relations, a busy, though not a perplexing year. 
Among its more important transactions was the signing, 
by Mr. Rives, of a treaty with the French government, by 
which France undertook to pay, in six annual instalments, 
the sum of twenty-five million francs, in satisfaction of the 
long-standing claim of the United States on behalf of 



SECRETARY OF STATE. gQg 

their citizens, for the spoliations suffered under the Berlin 
and Milan decrees. 

An acquaintance of the writer, W. Coventry H. Wad- 
dell, Esquire, of New York, occupied at this period a 
confidential position in the Department of State. " Long 
devoted," says the latter, " both politically and personally, 
to Mr. Van Buren, he could not have thought of asking 
me to do anything which I would not have done with alac- 
rity. Always kind, considerate, and true, there was still in 
his nature a certain fence of reserve which I felt that no 
one could pass. But when Mr. Livingston came, a stran- 
ger to me, I soon found that his heart was open as the 
day, large, sympathetic, and unsuspicious." This gentle- 
man describes the new Secretary's manner, when occupied 
in official labor, as one of intense abstraction. Walking up 
and down his room, his hands behind him, his shoulders 
stooping, and his eyes fixed forward and downward, the 
going and coming of his subordinate seemed unheeded. 
It was a common thing for the latter to withdraw a docu- 
ment from under the very paper on which the Secretary 
was writing, without his appearing conscious even that 
any person was present. Sometimes on leaving the de- 
partment for the day, when an important subject occupied 
his mind, Livingston would retain all the way on the 
street the stooping gait and abstracted look just described, 
and would not see a single person, though he might pass 
many acquaintances. 

The same gentleman once had occasion to call on Mr. 
Livingston at his house, in the afternoon of a day when 
the latter had not appeared at the department since morn- 
ing. He found Mrs. Livingston ready to drive out and 
waiting for her husband, who soon came in. 

" Where is the carriage, my dear ? " inquired the lady. 

" I don't know, I am sure," was the answer. 



SG4f LIFE OF EDWARD LIVINGSTON. 

" Why, you went out in it, did you not"? " she asked again. 

"Did I, my dear?" said he, reflecting; "then I must 
have come out by the western door." 

In fact, he had gone to the capitol in his carriage, 
which he had left at the eastern entrance ; had become 
interested in a debate, and remained most of the day ; 
had then passed out by the western steps, and walked 
home, while his coachman, patiently or otherwise, was 
still looking in vain for his appearance. An explosion of 
laughter followed his detection in this flagrant abstraction. 

But absence, or even concentration of mind, was far 
from being his constant state. His duties, though per- 
formed with his habitual industry and care, were for him 
a rather easy burden. His native gayety still enlivened his 
conversation and gleamed in his private correspondence ; a 
good pun would put him in the highest glee. His friend 
Dallas, in the same letter in which he had used a play upon 
a word that greatly amused the Secretary, inquired, with 
serious concern, if a rumor which he had heard, to the ef- 
fect that one of his political friends was to be turned out of 
office, was true. To this question Livingston replied : — 

" There is no intention, that I know of, to displace Mr. 
Shoemaker. It is the last thing I should think of. The 
story is vamped up to give uneasiness to his friends, and, 
were there no other, he should be retained for the sole 
reason that you desire it. Those who have raised the re- 
port deserved to be strapped. And I too am a punster; 
et ego in Arcadia ; and I too have been in Philadelphia." 

Punning was a feature in Livingston's conversation, all 
his life ; though as to the quality of his attempts of this 
kind he was never very nice or vain. He used to declare 
that the only good pun he had ever produced was while 
he was asleep. He had dreamed that he was present in a 
crowded church, at the ceremony of the taking of the veil 



SECRETARY OF STATE. 355 

by a nun. The novice's name was announced as Mary 
Fish. The question was then put, who should be her 
patron saint. " I woke myself," said Living^ston, " by 
exclaiming, ' Why, St. Poly Carp, to be sure ! ' " 

Yet he was never wanting in the highest, because the 
simplest dignity. He was always dressed in public with 
care and a strict regard to the proprieties of his age and 
position, and no figure could be more respectable than that 
which he habitually presented, with his tall form, slightly 
bent at the shoulders, his plain dark clothes, his white 
cravat, his carefully shaven face, his peaceful dark eyes, 
his bold forehead, and his thin black hair, scarcely touched 
with gray. His manner of living and of entertaining 
guests was not excelled in elegance, if equalled, at Wash- 
ington. In this his wife saved him all manner of exer- 
tion. No woman could be better qualified to preside in 
such a house than she. Having possessed striking beauty 
while young, and still retaining very remarkable dignity 
and grace, her mind was as extraordinary as her manners 
and person. Unacquainted with the English language 
before her marriage to Mr. Livingston, she had learned 
it mainly out of the English classics, and, though she 
always continued to speak it with a marked accent, had 
acquired a complete mastery of diction, drawn from that 

" Well of English undefyled," 

preferring that language, as she declared, for all purposes 
of earnest expression over her mother-tongue. Her face, 
figure, and manners were entirely feminine ; yet she bore 
a sway as complete as it was gentle in the whole circle of 
her acquaintance. She took upon herself the manage- 
ment of all household business, and was, at the same time, 
her husband's most trusted counsellor at every important 
step, in politics or in life. He even habitually sought 
her opinion upon what he wrote relating to his system of 



S66 LIFE OF EDWARD LIVINGSTON. 

penal law. Her office in listening to these productions 
she wittily compared to that of the servant-maid upon 
whom Moliere tried the effect of his comedies before sub- 
mitting them to the judgment of the world. 

The affectionate and ever growing confidence with 
which Livingston was accustomed to seek the counsel 
of his wife, so well shown in two letters already tran- 
scribed in the present chapter, may be further illustrated 
by extracts from others of his letters to her which I have 
seen. In one of these, dated soon after he was first re- 
turned to Congress from Louisiana, this passage occurs : 
" Could you for a moment doubt, my best friend, that 
your desire would be decisive with me, in producing ex- 
ertions that no other motive would induce me to make ? 
I well know and have always duly appreciated the mo- 
tive upon which all your wishes with respect to my con- 
duct were founded; and knowing this so well, much hap- 
pier would it have been, had I always followed them. 
On this occasion, although I am more than ever con- 
vinced of the justice of your views, I sometimes feel less 
confidence than perhaps I ought of the result ; but your 
judgment, on which I implicitly rely, encourages and 
perhaps will make me what you think I may and ought 
to be." And in another, enclosing the draught of a com- 
munication to the Emperor of Russia, to which the re- 
sponse has been given at a former page, he wrote: "Why 
are you not with me ? I want your society always, but 
now I want your counsel ; indeed, I want that always, 
too, for in cases where I doubt before I decide, I am 
never quite sure that my decision is right until you have 
approved it. The immediate occasion of this reflection 
is the enclosed draft ; tell me whether you like it, 
and, if you do, whether I had not better send it in French; 
and if you think so, I beg you to send me a translation." 



SECRETARY OF STATE. QQn 

The breaking up of the old cabinet having taken place 
during the vacation of Congress, the nominations to the 
new one came up for confirmation or rejection in the 
Senate on its meeting in December. The opposition, 
under the leadership of Clay, was disposed to use any 
plausible pretext for refusing to confirm the nomination 
by the President of his peculiar friends, — a disposition 
easily gratified, as the members of the opposition were 
a clear majority. The rejection of Mr. Van Buren as 
Minister to England, as well as its political consequences 
to him and to his enemies, is well known. The new cabi- 
net officers were all eventually confirmed, but not without 
hesitation and delay. Mr. Clay moved a scrutiny into 
the circumstances of the recent settlement of accounts 
between the United States and Mr. Livingston. A very 
free, informal examination of those circumstances fol- 
lowed. George M. Dallas, then a new and youthful 
senator from Pennsylvania, supported the nomination with 
great dignity, and made a careful and thorough state- 
ment to the Senate, in secret session, upon the strength 
of an investigation made by himself, and upon the au- 
thority of his deceased father, Alexander James Dallas,* 
— a name respected by every senator, — of the circum- 
stances under which the claim of the Government against 
Livingston had arisen, and of his conduct in acknowledg- 
ing the debt, and in struggling to pay it. Mr. Clay 
then withdrew his motion, declaring himself quite satis- 
fied ; t and Mr. Livingston's confirmation, as Secretary 
of State, was unanimous. The public opinion of the 

* The elder Dallas had been an Clay, in the course of a political ha- 

intimate acquaintance of Mr. Liv- rangue, could mention his name as 

ingston at the period of his misfor- that of a common defaulter, and even 

tune, and had become Secretary of couple it with the names of some 

the Treasury a few years later. of the most notorious of unfaithful 

■j- Yet afterwards, when Livingston public servants, 
had been four years in his grave, Mr. 



36g LIFE OF EDWARD LIVINGSTON. 

country, to which the achievements and misfortunes of 
the latter were known, had already signally and without 
audible dissent approved the appointment. 

The course of Livingston on this occasion was very 
characteristic, and not at all like that which an ordina- 
ry statesman, not to say politician, would be expected, 
in the same position, to purs\ie. Though well aware 
that the investigation was going on in the Senate, he 
took no step to supply his friends with the facts upon 
which they should rely in his support, and did not even 
mention the subject beforehand to Senator Dallas, 
who he knew would, if necessary, be one of the most 
zealous of his defenders. He chose, so far as his own 
action went, to let his character stand alone, and his con- 
duct speak for itself. 

The judicial independence of Mr. Livingston in the 
conduct of his office, as well as the peremptory suavity 
with which he knew how to exercise it, are well shown 
in the following answer to an application for place, made, 
on behalf of a person of doubtful qualifications, by a 
member of his party who was at the same time an in- 
coming senator and a personal friend : — 

" Until I saw your protege^ Mr. , I might have 

been inclined to recommend him for a consulate ; but 
really his appearance is not fitted for public life. Lnagine 
him in a consular uniform, marching with his sword drag- 
ging on the pavement, to a national entertainment. He 
is a good poet, you say, and novelist. I will certainly 
believe it ; but this last title to celebrity has convinced 
him, most unfortunately, that every man who can write 
a good novel must be also a diplomatist. The consulate 
given to Cooper, and the secretaryship to Irving, are 
the colors in Westminster Hall to him ; they will not let 
him sleep. ' Tu Dieu ! que tu es dpre a la curee^ Sei- 



SECRETARY OF STATE. 359 

gneiir Gil Bias,' I was tempted to say to him twenty 
times. He wanted new consulates created, old incmii- 
bents removed, and I believe, if I had given him the 
least encouragement, would have asked to be a minister, 
or charge cVafaires^ at least. Pray try and dissuade 
him from this pursuit, in which success would only make 
him uncomfortable. I did everything I could to make 
him understand that his chance was a bad one, and that 
his literary merit would be obscured by mercantile asso- 
ciations into which he would be led by a consulship ; 
but I fear without success." 

The Secretary observed the subsequent course of this 
disappointed aspirant after consular honors, and, a few 
months later, wrote again to his friend : — 

" I see that your protege is at the head of the converts 
to anti-Jacksonism. What a pity we did not make him 
a consul ! His recantation will be literally a palinodea, 
and be given in rhyme." 

The following letter, copied from the draught in his 
handwriting, exhibits Livingston's hearty contempt for 
the mean arts of political partisanship, and comes nearer 
expressing the common sentiment of indignation than 
almost any other passage that I have noticed from his 
pen : — 

" Washington, January 8, 1832. 

" Sir : I have just received your letter of the 30th 
December, by which you inquire ' whether my depart- 
ment affords any evidence that, while Mr. Clay was a 
Minister in England, he received the usual royal present 
of £\'-200 in silver plate.' There is nothing. Sir, to 
show this in my department, nor have I ever heard the 
suggestion, or believe there is the slightest foundation 
for it. 

" Under this conviction, I cannot make or direct any 
47 



3^0 LIFE OF EDWARD LIVINGSTON. 

inquiries which would show an injurious suspicion that 
I do not entertain. I am politically opposed to Mr. 
Clay, but I am persuaded he would never have done 
anything that could justify the imputation ; and if such a 
report is current, I should be sorry that even my silence 
should keep it alive. I am persuaded, Sir, that you agree 
with me in thinking that any political advantage, how- 
ever great, would be bought too dear, if obtained by 
countenancing such calumnies on our opponents. 

" I am your obedient servant, 

" Edw. Livingston. 

" H. Marshall, Esq." 

Mr. Livingston appears not to have been specially iden- 
tified with the President's policy in the veto of the United 
States Bank, though yielding to that policy a temperate 
approval. The latest and principal biographer of Jack- 
son intimates his impression that the message vetoing the 
bill for rechartering the institution was drawn by Liv- 
ingston.* This is an error. The following passage of 
a letter written by him to Mr. Dallas, under date of 
August 26, 1832, not only contradicts the contemporary 
rumor to that eifect, but betrays a real sensitiveness to 
the supposition : — 

" The veto, I find, is well received. The measure 
could not have been avoided ; the managers of the bank 
drew it on themselves, and they were forwarded by those 
who thought the institution necessary, and who feared, 
what has come to pass, that the pressure of the question 
would endanger it in any shape. As to the message, I 
will say no more of it than that no part of it is mine. 
This is a great piece of self-denial, considering the ex- 
travagant applause with which it has been received ; 

* Parton, Life of Jackson, vol. iii. page 409. 



SECRETARY OF STATE. g^l 

but I prefer my own plain feathers to those of any pea- 
cock, and I therefore to you disavow any participation 
in framing this splendid production, which has received 
the title of the second declaration of independence ; but, 
wonderful as the production is, I am astonished (since 
the most perfect composition, and the best arguments are 
frequently assailed) — I am astonished, I say, that this has 
escaped so well. There are arguments in it that an in- 
genious critic might plausibly expose, and I am glad that 
it has only been nibbled at by the editors. Is this con- 
cert \ Or what can be the reason of this forbearance ? I 
dreaded an immediate attack. Our friends have lost no 
time in taking off its force, by anticipating the public 
opinion." 

Toward the end of the same year, General Jackson 
was busy with the nullifiers of South Carolina. He now 
relied upon the pen that had served him oftenest and 
best. Among the private papers which the writer has 
examined in the course of preparing this volume, is the 
original draught of the celebrated proclamation of the 
10th of December, 1832, entirely in Livingston's hand- 
writing, much amended by erasures and interlineations, 
according to his invariable habit in all but epistolary com- 
positions. During the progress of the task, he received 
from the President the two following notes : — 

" For the Conclusion of the Proclamation. 

" Seduced as you have been, my fellow-countrymen, by 
the delusive theories and misrepresentations of ambitious, 
deluded, and designing men, I call upon you in the lan- 
guage of truth, and with the feelings of a father, to re- 
trace your steps. As you value liberty and the blessings 
of peace, blot out from the page of your history a record 
so fatal to their security as this ordinance will become, 



372 



LIFE OF EDWARD LIVINGSTON. 



if it be obeyed. Rally again under the banners of the 
Union whose obligations you, in connnon with all your 
countrymen, have, with an appeal to Heaven, sworn to 
support, and which must be indissoluble as long as we 
are capable of enjoying freedom. 

"Recollect that the first act of resistance to the laws 
which have been denounced as void by those who abuse 
your confidence and falsify your hopes in treason, sub- 
jects you to all the pains and penalties that are provided 
for the highest offence against your country. Can the 
descendants of the Rutledges, the Pinckneys, the Rich- 
ardsons, the Middletons, the Sumpters, the Marions, the 
Pickens, the Bratons, the Taylors, the Haynes, the Gads- 
dens, the Winns, the Hills, the Henshaws, and the Craw- 
fords, with the descendants of thousands more of the pa- 
triots of the Revolution, that might be named, consent to 
become traitors '? Forbid it, Heaven ! 

" Dear Sir : I submit the above as the conclusion of 
the proclamation, for your amendment and revision. Let 
it receive your best flight of eloquence, to strike to the 
heart and speak to the feelings of my deluded country- 
men of South Carolina. The Union must be preserved 
without blood, if this be possible ; but it must be pre- 
served at all hazards and at any price. 

" Yours with high regard, 

" Andrew Jackson. 

" E. Livingston, Esq. 

"Dec. 4, 1832. II o'clock p. m." 

" Friday, at night, Dec. 7th. 

"My Dear Sir: Major Donelson, having finished copy- 
ing the sheets handed by you about 4 o'clock p. m. to-day, 
is waiting for the balance. Such as are ready, please 
send, sealed, by the bearer. The message having been 



SECRETARY OF STATE. 



373 



made public on the 4th, it is desirable, whilst it is draw- 
ing the attention of the people in South Carolina, that 
their minds should be drawn to their real situation^ be- 
fore their leaders can, by false theories, delude them 
again. Therefore it is to prevent blood from being shed 
and positive treason committed, that I wish to draw the 
attention of the people of South Carolina to their dan- 
ger, that no blame can attach to me by being silent. 
From these reasons you can judge of my anxiety to have 
this to follow the message. 

" Yours respectfully, 

" Andrew Jackson. 

" E. Livingston, Esq., 
" Secretary of State." 

The sentences above proposed as hints for the conclu- 
sion of the proclamation were, I think, the only sugges- 
tion made in writing by General Jackson in relation to 
the form of this celebrated state paper, though he did 
not fail orally and repeatedly to impress upon Mr. Liv- 
ingston his own views of the subject, in characteristically 
concise and emphatic terms. The few phrases conceived 
by the President were not used by the Secretary. The 
thoughts they embody appear here and there in the fol- 
lowing closing paragraphs of the proclamation : — 

" Fellow-citizens of my native State, let me not only 
admonish you, as the first magistrate of our common 
country, not to incur the penalty of its laws, but use the 
influence that a father would over his children whom he 
saw rushing to certain ruin. In that paternal language, 
with that paternal feeling, let me tell you, my country- 
men, that you are deluded by men who are either deceived 
themselves or wish to deceive you. Mark under what 
pretences you have been led on to the brink of insurrec- 
tion and treason, on which you stand! First, a diminu- 



3^4 LIFE OF EDWARD LIVINGSTON. 

tion of the value of your staple commodity, lowered by 
over-production in other quarters, and the consequent 
diminution in the value of your lands, vrere the sole ef- 
fect of the tariff laws. 

" The effect of those laws was confessedly injurious ; 
but the evil was greatly exaggerated by the unfounded 
theory you were taught to believe, that its burdens were 
in proportion to your exports, not to your consumption 
of imported articles. Your pride was roused by the as- 
sertion that a submission to those laws was a state of vas- 
salage, and that resistance to them was equal, in patriotic 
merit, to the oppositions our fathers offered to the op- 
pressive laws of Great Britain. You were told that this 
opposition might be peaceably, might be constitutionally 
made ; that you might enjoy all the advantages of the 
Union, and bear none of its burdens. Eloquent appeals 
to your passions, to your State pride, to your native cour- 
age, to your sense of real injury, were used to prepare 
you for the period when the mask, which concealed the 
hideous features of disunion, should be taken off. It fell, 
and you were made to look with complacency on objects 
which, not long since, you would have regarded with hor- 
ror. Look back to the arts which have brought you to 
this state ; look forward to the consequences to which it 
must inevitably lead ! Look back to what was first told 
you as an inducement to enter into this dangerous course. 
The great political truth was repeated to you, that you 
had the revolutionary right of resisting all laws that were 
palpably unconstitutional and intolerably oppressive ; it 
was added that the right to nullify a law rested on the 
same principle, but that it was a peaceable remedy ! This 
character which was given to it made you receive, with 
too much confidence, the assertions that were made of the 
unconstitutionality of the law and its oppressive effects. 



SECRETARY OF STATE. gjg 

Mark, my fellow-citizens, that, by the admission of your 
leaders, the unconstitutionality must be palpaLle, or it will 
not justify either resistance or nullification ! What is the 
meaning of the word 2>ttlpaUe in the sense in which it is 
here used] That which is apparent to every one; that 
which no man of ordinary intellect will fail to perceive. 
Is the unconstitutionality of these laws of that descrip- 
tion ] Let those among your leaders who once approved 
and advocated the principle of productive duties answer 
the question ; and let them choose whether they will be 
considered as incapable, then, of perceiving that which 
must have been apparent to every man of common under- 
standing, or as imposing upon your confidence and en- 
deavoring to mislead you now. In either case, they are 
unsafe guides in the perilous path they urge you to tread. 
Ponder well on this cir-^umstance, and you will know how 
to appreciate the exaggerated language they address to 
you. They are not champions of liberty, emulating the 
fame of our Revolutionary fathers ; nor are you an op- 
pressed people, contending, as they repeat to you, against 
worse than colonial vassalage. 

" You are free members of a flourishing and happy 
Union. There is no settled design to oppress you. You 
have indeed felt the unequal operation of laws which may 
have been unwisely, not unconstitutionally passed ; but 
that inequality must necessarily be removed. At the very 
moment when you were madly urged on to the unfortu- 
nate course you have begun, a change in public opinion 
had commenced. The nearly approaching payment of the 
public debt, and the consequent necessity of a diminution 
of duties, had already produced a considerable reduction, 
and that, too, on some articles of general consumption in 
your State. The importance of this change was under- 
rated, and you were authoritatively told that no further 



876 



LIFE OF EDWARD LIVINGSTON. 



alleviation of your burdens was to be expected, at the very 
time when the condition of the country imperiously de- 
manded such a modification of the duties as should reduce 
them to a just and equitable scale. But, as if apprehen- 
sive of the effect of this change in allaying your discon- 
tents, you were precipitated into the fearful state in which 
you now find yourselves. 

"I have urged you to look back to the means that were 
used to hurry you on to the position you have now as- 
sumed, and forward to the consequences it will produce. 
Something more is necessary. Contemplate the condition 
of that country of which you still form an important part. 
Consider its government, uniting in one bond of common 
interest and general protection so many different States, — 
giving to all their inhabitants the proud title of American 
citizens, protecting their commerce, securing their litera- 
ture and their arts, facilitating their intercommunication, 
defending their frontiers, and making their name re- 
spected in the remotest parts of the earth. Consider the 
extent of its territory ; its increasing and happy popula- 
tion ; its advance in arts, which render life agreeable ; and 
the sciences, which elevate the mind ! See education 
spreading the lights of religion, morality, and general 
information into every cottage in this wide extent of our 
Territories and States! Behold it as the asylum where 
the wretched and the oppressed find a refuge and support ! 
Look on this picture of happiness and honor, and say. 
We, too, are citizens of America ! CaroHna is one 
of these proud States ; her arms have defended, her best 
blood has cemented, this happy Union ! And then add, 
if you can, without horror and remorse. This happy Union 
we will dissolve ; this picture of peace and prosperity we 
will deface ; this free intercourse we will interrupt ; these 
fertile fields we will deluge with blood ; the protection of 



SECRETARY OF STATE. QHH 

that glorious flag we renounce ; the very name of Ameri- 
cans we discard. And for what, mistaken men, — for 
what do you throw away these inestimable blessings ? 
For what would you exchange your share in the advan- 
tages and honor of the Union ] For the dream of sepa- 
rate independence, — a dream interrupted by bloody con- 
flicts with your neighbors, and a vile dependence on a 
foreign power. If your leaders could succeed in estab- 
lishing a separation, what would be your situation I Are 
you united at home ? are you free from the apprehension 
of civil discord, with all its fearful consequences ? Do 
our neighboring repubHcs, every day suffering some new 
revolution, or contending with some new insurrection, — 
do they excite your envy ? But the dictates of a high 
duty oblige me solemnly to announce that you cannot 
succeed. The laws of the United States must be exe- 
cuted. I have no discretionary power on the subject; 
my duty is emphatically pronounced in the Constitution. 
Those who told you that you might peaceably prevent 
their execution deceived you ; they could not have been 
deceived themselves. They know that a forcible opposi- 
tion could alone prevent the execution of the laws ; and 
they know that such opposition must be repelled. Their 
object is disunion : but be not deceived by names ; dis- 
union, by armed force, is treason. Are you really ready 
to incur its guilt ? If you are, on the heads of the insti- 
gators of the act be the dreadful consequences ; on their 
heads be the dishonor, but on yours may foil the punish- 
ment. On your unhappy State will inevitably fall all the 
evils of the conflict you force upon the government of 
your country. It cannot accede to the mad project of 
disunion, of which you would be the first victims ; its first 
magistrate cannot, if he would, avoid the performance of 
his duty. The consequence must be fearful for you, dis- 



48 



378 



LIFE OF EDWARD LIVINGSTON. 



tressing to your fellow-citizens here, and to the friends 
of good government throughout the world. Its enemies 
have beheld our prosperity with a vexation they could not 
conceal ; it was a standing refutation of their slavish doc- 
trines, and they will point to our discord with the triumph 
of malignant joy. It is yet in your power to disappoint 
them. There is yet time to show that the descendants of 
the Pinckneys, the Sumters, the Rutledges, and of the 
thousand other names which adorn the pages of your Rev- 
olutionary history, will not abandon that Union to support 
which so many of them fought, and bled, and died. 

" I adjure you, as you honor their memory, as you love 
the cause of freedom, to which they dedicated their lives, 
as you prize the peace of your country, the lives of its 
best citizens, and your own fair fame, to retrace your 
steps. Snatch from the archives of your State the dis- 
organizing edict of its convention ; bid its members to 
reassemble, and promulgate the decided expressions of 
your will to remain in the path which alone can conduct 
you to safety, prosperity, and honor. Tell them, that, 
compared to disunion, all other evils are light, because 
that brings with it an accumulation of all. Declare that 
you will never take the field unless the star-spangled ban- 
ner of your country shall float over you ; that you will 
not be stigmatized when dead, and dishonored and scorned 
while you live, as the authors of the first attack on the 
Constitution of your country. Its destroyers you cannot 
be. You may disturb its peace ; you may interrupt the 
course of its prosperity ; you may cloud its reputation 
for stability: but its tranquillity will be restored; its pros- 
perity will return ; and the stain upon its national charac- 
ter will be transferred, and remain an eternal blot on the 
memory of those who caused the disorder. 

" Fellow-citizens of the United States, the threat of 



SECRETARY OF STATE. g^Q 

unhallowed disunion, the names of those, once respected, 
b)^ whom it is uttered, the array of military force to sup- 
port it, denote the approach of a crisis in our affairs on 
which the continuance of our unexampled prosperity, our 
political existence, and perhaps that of all free govern- 
ments may depend. The conjuncture demanded a free, a - 
full, and explicit enunciation, not only of my intentions, 
but of my principles of action ; and, as the claim was as- 
serted of a right by a State to annul the laws of the Union, 
and even to secede from it at pleasure, a frank exposition 
of my opinions in relation to the origin and form of our 
government, and the construction I give to the instrument 
by which it was created, seemed to be proper. Having the 
fullest confidence in the justness of the legal and consti- 
tutional opinion of my duties which has been expressed, 
I rely, with equal confidence, on your undivided support 
in my determination to execute the laws, to preserve the 
Union by all constitutional means, to arrest, if possible, 
by moderate but firm measures, the necessity of a re- 
course to force, and, if it be the will of Heaven that , 
the recurrence of its primeval curse on man for the shed- 
ding of a brother's blood should fall upon our land, that 
it be not called down by any offensive act on the part of 
the United States. 

" Fellow-citizens, the momentous case is before you. 
On your undivided support of your government depends 
the decision of the great question it involves, whether 
your sacred Union will be preserved, and the blessings it 
secures to us as one people shall be perpetuated. No one 
can doubt that the unanimity with which that decision will 
be expressed will be such as to inspire new confidence in 
republican institutions, and that the prudence, the wisdom, 
and the courage which it will bring to their defence will 
transmit them unimpaired and invigorated to our children. 



380 LIFE OF EDWARD LIVINGSTON. 

" May the Great Ruler of nations grant that the signal 
blessings with which he has favored ours may not, by the 
madness of party or personal ambition, be disregarded 
and lost ; and may his wise Providence bring those who 
have produced this crisis to see their folly before they feel 
the misery of civil strife, and inspire a returning venera- 
tion for that Union which, if we may dare to penetrate 
his designs, he has chosen as the only means of attaining 
the high destinies to which we may reasonably aspire." 

Having read the obviously candid but somewhat vague 
statement communicated by Major Lewis to Mr. Parton,* 
to the effect that General Jackson, on examining Mr. Liv- 
ingston's draught, informed the latter that he had not cor- 
rectly understood his notes in some particulars, and that 
certain parts of the paper must be altered, which was 
accordingly done by the Secretary, I compared the actual 
proclamation, word for word, with the draught in Living- 
ston's handwriting, in order to see what were the correc- 
tions which had been thus suggested. There is no varia- 
tion between them, except some verbal amendments such 
as so painstaking a writer would have been sure to make 
while reading the printer's proof, and except one change, 
of materiality, in the paragraph next to the last, which, in 
the draught, reads as follows : — 

" My countrymen ! the whole of the momentous case 
is before you. On your concord, on your undivided sup- 
port, depends the decision of the great question it involves. 
Public opinion everywhere is powerful ; here it is omnipo- 
tent. If you should decide — fatally, in my opinion, de- 
cide — that a State may annul an act of Congress or recede 
from the Union, if even any important part of the nation 
should concur in the Carolina doctrines on this subject, it 
cannot change my conviction of duty or prevent my at- 

* Vide Life of Jackson^ vol. iii. page 466. 



SECRETARY OF STATE. 33X 

tempts to execute it, though it may render those attempts 
inefficient. But if, as I trust, only one spirit shall per- 
vade the nation, and that spirit shall inspire a cry from 
Maine to Louisiana that the Union must be preserved, the 
voice will be obeyed, the Union will be preserved ; we 
shall still be a nation, respected the more for the decision 
we shall have shown in a time of no common danger. 
New confidence will be inspired in republican institutions, 
and we may yet hope to hand them down to our children 
unimpaired, preserved, invigorated by our prudence, our 
wisdom, and courage in their defence. Unanimity and a 
strong, unequivocal expression of it, may avert the evils 
that threaten us. Madness only could inspire our brethren 
to persevere in principles which a universal reprobation 
of the Union should condemn as unsound, and a contest 
for the support of which they must perceive to be ut- 
terly hopeless." 

The amendments on the face of the manuscript are 
all purely philological, and such as Mr. Livingston habit- 
ually and constantly made, as has before been stated, in 
the draughts of all compositions except ordinary letters. 
The alteration of the above penultimate paragraph I take, 
then, to be the one and the only one made in this paper, 
on the suggestion of the President. How such an amend- 
ment came to be required, seems almost too obvious to be 
stated. As to what might be the final issue of the con- 
troversy between South Carolina and the Federal Govern- 
ment, as influenced by the possible public opinion of the 
country, the mind of the Secretary could contemplate and 
state two opposite hypotheses, while the more dogmatic 
intellect of the President could neither imagine nor admit 
but one. 

While Livingston was thus performing these highest 
and most active functions at home, the European reputa- 



382 LIFE OF EDWARD LIVINGSTON. 

tion of his criminal code was fast ripening. In the spring 
of 1833, he was chosen foreign associate of the Institute 
of France (Academy of Moral and Political Sciences). 
This distinction, which has always been sparingly con- 
ferred, which few Americans have reached, and which 
even monarchs can only attain through the double merit 
of genius and industry, he had not sought. 

A popular rumor had now assigned the French mission 
to Mr. Livingston, from month to month, for more than a 
year ; * the government had a most important errand with 
which to charge him ; his personal inclination began to 
point strongly toward going abroad ; and the invitations 
which he received from Europe were most persuasive. 
Among the latter was the following letter which I tran- 
scribe entire, as the other matters it contains are not 
without interest : — 

" Paris, December 8, 183a. 

"My Dear Sir: I have been requested by the young 
Duke of Brunswick to forward the enclosed letter, and 
transmit your answer wherever the persecutions of which 
he is the object may at the time oblige him to make his 
abode. 

" That the young man has been rather wild in his duke- 
dom I easily believe ; but the coalition of princes against 

* The following characteristic pas- have a most able coadjutor. Doiv- 

sage occurs in a postscript of a letter dies, dowdies won't do for European 

which, in March 1832, Mr. Living- courts, — Paris especially. There 

ston received from the celebrated and at London the character of the 

John Randolph, of Roanoke: — Minister's lady is almost as impor- 

" If General Jackson does not kill tant as his own. It is the very place 

the bank, the bank will kill him. Let for her. There she would dazzle 

me conjure you to lay this matter at and charm ; and surely the salons of 

heart, and accept, not the Chiltcrn Paris must have far greater attrac- 

Hundreds, but the mission to France, tions for her than the yahoos of 

for which you are better qualified Washington. If I had not lost the 

than any man in the United States, facility of speaking French by long 

In Mrs. Livingston, to whom pre- disuse, I should like it of all things." 
sent my warmest respects, you would 



SECRETARY OF STATE. 383 

him is owing, not to previous errors, but to diplomatic 
intrigue and the popular sentiments he has manifested. 
He has been lately expelled from France, agreeably to a 
wicked alien bill which I have opposed with all my might, 
and is determined to go to law, by the counsel of Odillon 
Barrot, Mauguin, and Comte, my colleagues, the latter of 
whom will plead his cause, in his capacity of an oppressed 
man. He has entreated my support, which I very readily 
give him. 

" It seems to me the money placed by him in the 
United States is out of the reach of monarchical juntos 
or resolves of the Frankfort diet. But my legal knowl- 
edge is not so complete as to give him a definitive an- 
swer. You are, as Secretary of State and a lawyer, the 
best oracle to whom he may apply. 

" You know, my dear friend, I have made it a point not 
to intrude upon the authorities within the United States, 
namely, that of Congress and the Executive, with special 
applications. I could not, however, circumstanced as the 
munificence of Congress has made me, forbear to express 
my feelings in the case of the Rochambeau family and a 
few remaining officers of the French army. Had I the 
honor of a seat in either House, I would submit to my 
colleagues the propriety of doing something in behalf of 
the application, and even of the very scanty number of 
men in the same case. But it only belongs to me to im- 
part the sentiments to a confidential friend. 

" I refer you to the public papers for an account of 
transactions and dispositions on this side of the Atlantic. 
The system of the revolution of July is overpowered at 
Court and in the Houses by the system called of the 13th 
March, which amounts to a return to the principles of the 
charter of 1814<, to the benefit of Louis Philippe and an 
aristocracy, not of birth, but of property and money. Yet 



384' LIFE OF EDWARD LIVINGSTON. 

the spirit of '89 and 1830 is living in many hearts, and 
shall ultimately triumph, not only in France, but through- 
out Europe. The enclosed short speeches will give you 
an idea of what passes in Holland and Italy. 

" The reelection of the President will set you at liberty 
to make a choice between the secretaryship and the French 
legation ; from what you was writing to me some time 
ago, I think I may cherish the hope to see you here. 
With what affection and pleasure I hope it is superfluous 
to say. 

" Present my best respects and affectionate sentiments 
to the President. Remember me most affectionately to 
family and friends, and believe me what I have been for 
fifty-five years, 

" Your grateful and loving friend, 

" Lafayette." 

In April, 1833, the daughter and only surviving child 
of Mr. Livingston was married to Thomas P. Barton, 
Esquire, of Philadelphia. Immediately after the mar- 
riage ceremony, the President, upon offering his congratu- 
lations, announced to the latter that Mr. Livingston would 
soon go to reside in France as Minister, and that he had 
selected the new member of his family for Secretary of 
the legation. 

It was during the first year of Mr. Livingston's service 
in the cabinet, that M. de Tocqueville visited the United 
States, charged with the official errand of practically ex- 
amining our penitentiary system, — a visit which resulted, 
as all the world knows, in profound studies of a more 
general nature. The Secretary of State at once perceived 
the enlightened genius of the youthful foreigner, enter- 
tained him often, opened to him freely the stores of his 
own information, showered upon him such documents as 



SECRETARY OF STATE. 385 

he needed, and gave him all possible facilities in the pros- 
ecution of his various inquiries. This service, the latter, 
upon publishing the work which soon afterwards gave ce- 
lebrity to his name, acknowledged in a conspicuous and ex- 
clusive manner. At the foot of one of his earliest pages, 
de Tocqueville declares that " among the official persons 
in America who favored my researches, I should, above 
all, mention Mr. Edward Livingston, then Secretary of 
State (now Minister Plenipotentiary at Paris). During 
my sojourn at the capital, Mr. Livingston had the kind- 
ness to cause to be sent me most of the documents which 
I possess relating to the Federal Government. Mr. Liv- 
ingston is one of those rare men whom one loves in read- 
ing what they have written, whom one admires and hon- 
ors even before knowing them, and to whom one is happy 
in owing a debt of gratitude." 

49 



CHAPTER XVII. 

MINISTER TO FRANCE. 

Unsuccessful Attempts by Mr. Livingston to keep a Diary — Extracts — 
Appointment to the French Mission — Voyage to France — Objects of the 
Mission— 'Active Exertions of Mr. Livingston — The Treaty of July 4, 1831 
— Failure to fulfil it by the French Government — Efforts of the King, and 
Opposition by the Chamber of Deputies — A Draft for Money drawn by 
the Secretary of the Treasury upon the French Minister of Finance — Refusal 
to pay it by the latter — Failure of the Necessary Appropriation in the Cham- 
ber of Deputies — Irritation evinced by President Jackson — Message to 
Congress — Effect of the Message in France — Offer of Passports to Mr. 
Livingston — His Refusal to accept them unless ordered to leave by the 
Government — Elaborate Letter to the Comte de Rigny — Approval of 
his Course by the President — Conditional Appropriation by the Deputies 
of the Money due the United States — Mr. Livingston demands Pass- 
ports — His Parting Address to the Due de Broglie — His Continued At- 
tention to the Subject of Penal Legislation — Increase of his Reputation 
as a Publicist — Letters from Villemain and Victor Hugo — His Efforts 
to promulgate his System — Letter to the Howard Society of New Jersey 
— Death of Lafayette — Last Letter from the General — Journey through 
Switzerland and Germany — De Sellon's Monument — Anecdote of Mit- 
termaier — Livingston's Social Traits and Temper — His Correspondence 
with Public Men — Letter to his Sister — Farewell to Davezac — The 
Homeward Voyage — Popular Reception at New York — Public Dinners, 
etc. — Unanimous Approbation in America of Livingston's Conduct of the 
Mission — Defiant Sentiment of the Nation toward France — Speech of 
John Quincy Adams — The President's Approval of Livingston's Course. 

TWICE during- his life Mr. Livingston undertook 
to keep a diary. He failed each time, after a short 
trial, — not of course from any lack of methodical indus- 
try, but, as I think, for want of that natural egotism, 
which, when a really great man possesses it, always lends 
a lively charm to his memoirs. 

The first of these attempts was begun on the day of his 



MINISTER TO FRANCE. ggy 

arrival at ^yashington to undertake the Secretaryship of 
State, and abandoned on the day of his induction into the 
office. The last entry made by him in this book is, — 
" May M. This day received my commission as Secre- 
tary of State, and entered on the duties of the office. 
God grant that I may exercise them to the good of my 
country ! " The other entries are the briefest possible 
memoranda, arid not much more than a record of the 
deates of his correspondence. From them it appears that 
he habitually wrote as many as from ten to fifteen letters 
daily. 

The next year he commenced a fresh experiment of 
the same kind, and with a similar result. His new book 
opens thus : — 

"Better late than never, — March 10, 1832. I bought 
this book, I am ashamed to say how long ago, for the 
purpose of keeping a kind of journal of official and pri- 
vate and political business and events, all blended togeth- 
er ; but I have never yet found time to begin it. Now I 
have less leisure than ever ; but, as I every day regret 
that I have not made memorandums of this kind, I will 
try to execute my purpose." 

Some retrospective entries finish the page, after which 
all that follows, for a period of several months, I tran- 
scribe : — 

" On the 29th day of May, 1833, I resigned the office 
of Secretary of State of the United States, which I had 
held since the 24th May, 1831, and the same day re- 
ceived the appointment of Envoy Extraordinary and Min- 
ister Plenipotentiary to France. A few days after this, I 
received my instructions and left Washington to prepare 
for my departure. On receiving my resignation, the 
President addressed me a letter in which he adverts in 
the most flattering terms to military services with him 



388 LIFE OF EDWARD LIVINGSTON. 

in the New Orleans campaign, as well as to my manage- 
ment of the Department of State. 

" On the — of July, I met the President at New 
\ York, on his way to Boston. He expressed great anx- 
I iety for my speedy departure ; and, as some delay had 
I occurred in fitting out the Delaware, ship of the line, in 
/ which it had been arranged that I should be conveyed 
to my destination, I determined to take one of the packets 
from New York, intending to have gone on the 16th; 
but, some disappointment in my private arrangements 
having intervened, I wrote to the Secretary of State, say- 
ing that it would be impossible for me to get ready before 
the !24*th, (by which day it was confidently asserted that 
the Delaware would sail from the Chesapeake,) and that 
I would be ready to go on board as soon as she could 
come to New York to receive me. I made my prepa- 
rations accordingly, and arrived in New York a week 
before the ship came in. She was detained there until the 
14th of August; on which day, having taken leave of 
my relations and friends, I embarked with my family. 
A salute was fired on my coming on board, and the 
noble ship spread her sails and stood immediately out to 
sea. This is the first time I have taken leave of my 
native land. Whatever favorable anticipations may be 
formed of a residence abroad as the representative of 
our country when the period of leaving it is yet at a 
distance, yet as it approaches they give way to sensations 
by no means so pleasing. Grief on parting with rela- 
tives and friends, whom you may probably never again 
meet; misgivings of your own ability to manage the im- 
portant national concerns intrusted to you ; apprehen- 
sions of leaving undone some matter of importance to 
yourself or others; and, finally, the feeling that compre- 
hends most of the others, that painful one attending a 



MINISTER TO FRANCE. 380 

separation from your native country for an uncertain 
period, — these are some of the drawbacks from the 
satisfaction I should otherwise feel in undertaking the 
honorable mission that has been assigned to me. Some 
years before this they would have been but slight deduc- 
tions from the anticipated pleasure I should have en- 
tertained ; but I am now sixty-nine years of age, and, 
although I enjoy uninterrupted health of body, and, as 
far as I can myself judge, an unimpaired intellect, yet 
change of scene and an acquaintance with new actors in 
it have lost much of their charm for me. But, to com- 
pensate for this, I go under advantages I should have 
had at no other period of my life. The station I have 
filled at home gives me some political importance, and 
the success of my publications on penal law, which has 
procured me the unsolicited admission to the French In- 
stitute, has given me a literary reputation, certainly be- 
yond my merits, but which must add greatly both to 
my personal gratification and to the consideration of my 
country. 

"On the 12th September, 1833, we entered the 
port of Cherbourg, after a most agreeable voyage of 
twenty-eight days. Fine weather, excellent accommo- 
dations, and, abov^e all, the unremitted attentions and 
agreeable society of Captain Ballard, and the other offi- 
cers of the Delaware, made us forget that we were at 
sea. Our arrival was a few days too late for the enjoy- 
ment of a scene that would have been quite new to us : 
the King and royal family had just left this port, where 
they had been met by the Royal Yacht Club of England, 
with their beautiful vessels." 

Five pages more of brief notes of conversations, din- 
ners, etc., entered at irregular intervals, close this second 
and last fragment of a diary. He whose industry never 



390 



LIFE OF EDWARD LIVINGSTON. 



flagged in the pursuit of knowledge, nor in the service 
of others, — whether his chents, his country, or humanity, 
— could not persevere in the task, which many find so 
easy to themselves and make so interesting to others, of 
recording merely personal incidents and observations. 

Livingston enjoyed the general novelty of what he now 
saw, with all the fresh interest of a young traveller. Paris 
and the Parisians, the theatres and gardens, the progress 
of science and art, the government, the army, the people, 
persons, society, all pass in review in his letters to friends 
at home. No ardent, youthful American democrat could 
have found more complete comfort in a comparison of 
the institutions of France with those of the United States 
than he did. 

There would have been some excuse for him, if, at his 
time of life, with the growing fame he enjoyed, the novel 
scenes which surrounded and interested him, and the flat- 
tering notice he received from some of the most eminent 
men and most agreeable societies of Europe, he had 
satisfied his conscience by a languid attention to the 
business of his mission. But he entered upon that busi- 
ness and persevered in its discharge, at the sacrifice of his 
comfort and the risk of his popularity in France, with all 
the spirit and assiduity of a young diplomatist, whose for- 
tune might depend upon his specific success. I am writ- 
ing after the perusal of the original draughts of upwards 
of ninety despatches which he addressed to the Secretary 
of State at Washington, detailing, from mail to mail, his 
exertions, his conversations with the King, the Ministers, 
and members of the Chamber of Deputies, his fears, hopes, 
and impressions. He had been sent to effect two objects: 
the payment of the large sum secured by treaty, of which 
a part was then overdue from the French government 
to his own, and, that accomplished, the negotiation of a 



MINISTER TO FRANCE. 391 

new treaty readjusting the commercial relations of the 
two countries. 

The claim of the United States for indemnity on ac- 
count of French spoliations, under the Berlin and Milan 
decrees, notwithstanding its pretty clear original merits, 
had become, before its settlement by the treaty of July 
4<, 1831, — negotiated at Paris by Mr. Rives, — a rather 
stale demand. Louis Philippe, acquiescing in its justice, 
had signed that treaty, fixing the indebtedness of his gov- 
ernment to that of the United States at the sum of twen- 
ty-five million francs, payable, with interest, in six yearly 
instalments. This was all the King could do. The 
action of the Chamber of Deputies was required, in order 
to appropriate the mone3^ Whether such action could 
be secured at all, and, if so, when would be the most 
propitious occasion for broaching the subject to the Cham- 
ber, were matters of uncertainty and royal anxiety. His 
Majesty's ministers did not venture to have inserted in 
the annual budget the amount of the first instahnent, 
when it was about to fall due, notwithstanding that the 
United States had proceeded, in fulfilment of a provision 
in the treaty, immediately to modify their tariff by a 
reduction of duties upon French wines, — a beneficial 
change which that nation had ever since enjoyed. And 
so no provision was made for the payment which had 
been solemnly stipulated for in the treaty, and which 
became due on the 2d of February, 1833. 

The Secretary of the Treasury, Mr. McLane, to whose 
discretion Congress had by law confided the mode of 
transacting the business of receiving the money, assum- 
ing that the payment would be made, drew, according 
to a previous notice, a bill of exchange for the amount 
of the first instalment, dated the 7th of February, ad- 
dressed to the French Minister of Finance, and sold the 



392 



LIFE OF EDWARD LIVINGSTON. 



draft, in accordance with the forms of mercantile busi- 
ness, to the Bank of the United States. The bank trans- 
ferred it to a European holder, who caused it to be pre- 
sented to the Minister to whom it was directed. The 
latter declined the payment, stating, as a reason, that no 
appropriation for the purpose had been made; and the 
paper was returned, duly protested, to Mr. McLane. 
This was the immediate occasion for the appointment 
of Livingston to the French mission, which had been 
vacant since the return, in 1831, of Mr. Rives, — the 
intermediate appointment of Mr. Harris as Charge 
d' Affaires having been intended only as a temporary 
measure. 

After a most flattering reception by the King and 
royal family, Mr. Livingston proceeded at once to busi- 
ness, and vigorously urged an early and special convoca- 
tion of the Chambers, in order that a law for the execu- 
tion of the treaty might be presented. The King would 
gladly have complied, but a reluctance to meeting the 
question before the deputies, and perhaps even before a 
portion of the cabinet, suggested to his mind paramount 
reasons for delay till the regular session, and, even then, 
for studying to find a favorable opportunity to broach an 
unpleasant subject. But strong and constant verbal as- 
surances were given to Mr. Livingston that the King and 
Cabinet had the subject much at heart, and that the neces- 
sary measure would be presented at the coming regular 
session, and would doubtless be successful. 

The King was right in apprehending a formidable re- 
sistance in the Chamber of Deputies. All the elements 
of opposition to the government readily combined to 
represent the treaty as one which ought not to have been 
made, and one in which the American government had 
gained an undue advantage, such as the Chamber was not 



MINISTER TO FRANCE. 393 

bound to carry into effect. All arguments based upon the 
binding force of the contract seemed to be of no avail, 
and the expediency of executing it was what even the 
friends of the measure chiefly relied upon in the discus- 
sions to which it gave rise. Livingston watched keenly 
all that was said by the French journals on the subject, 
actively canvassed the opinions of members of the Cham- 
ber, and, in conversation, furnished various arguments 
to the friends of the measure to prove its expediency, 
while, in his official intercourse with the government, he 
was careful to insist only on the absolute and solemn 
obligation of the treaty. 

The pretext that Mr. Rives had gained an advantage in 
the negotiation, as to the amount due to the citizens of the 
United States, was manifestly disingenuous ; because the 
French government, ever since the occurrence of the 
spoliations, had been in possession of every document 
necessary to show full particulars of all the trespasses 
complained of by the United States. These documents 
were the original ship's papers of the vessels captured, 
and the proces verhaux and records of legal proceedings 
which indicated exactly the gross and net proceeds of the 
several cargoes disposed of under the two decrees. In- 
deed, the government of the United States was com- 
pletely dependent upon that of France for the precise in- 
formation revealable by these documents, in order to be 
able to make an equitable division of the sum to be re- 
ceived among its various claimants ; for which reason the 
production of the documents was, by a distinct article of 
the treaty, made as binding upon France as was the pay- 
ment of the money. For French statesmen to say tliat 
the Americans had secured an undue advantage in the set- 
tlement of the amount to be paid, was, therefore, as un- 
reasonable as for a person, playing at cards, with a full 
50 



394, LIFE OF EDWARD LIVINGSTON. 

knowledge of both his adversary's hand and his own, to 
complain that he was outwitted. Yet there was in the 
Chamber of Deputies a large body which, though com- 
posed of several parties incapable of coalescing in any- 
thing but a factious opposition to a feeble government, 
readily united in insisting loudly that the King had weakly 
acceded to an exorbitant demand, and that the representa- 
tives of the nation ought not to ratify an agreement thus 
made. The members who took this ground succeeded in 
placing their country for a time in the false attitude of a 
reluctant and unscrupulous debtor, looking out for causes 
of affront which might excuse the refusal or neglect to 
pay a debt distinctly liquidated after more than twenty 
years of deliberation and delay. 

General Jackson, throughout the affair, evinced much 
impatience and irritation at the course pursued by the 
French government. An indiscreet minister, possessing 
the influence with the President which Livingston enjoyed, 
would, I think, inevitably have got the two nations em- 
broiled. He succeeded in vindicating signally the rights 
and dignity of his country, while circumspectly guarding 
the way to the peaceful solution which followed. 

Up to the time of the refusal by the French govern- 
ment to pay the draft of Mr. McLane for the first instal- 
ment, the Ministry had not ventured to ask the Chamber 
of Deputies to make the necessary appropriation, though 
that body had been for several months in session. Such 
an application was made a few weeks after the draft had 
been dishonored ; but the Chamber then only found time 
to read the bill and refer it to a committee. At a 
later session in the same year another bill for the same 
object was introduced with a similar result. Not till 
April, ISS'i', after Livingston had been for six months 
in Paris, constantly pressing the subject upon the notice 



MINISTER TO FRANCE. 



395 



of the French government, was the definitive action of the 
Chamber upon the measure obtained ; and then its deci- 
sion, by a majority of eight, was a refusal to make the 
appropriation. 

The King immediately despatched a corvette with in- 
structions to his Minister at Washington to make assur- 
ances to our government that the new Chamber of Depu- 
ties should be called together as soon after the election of 
its members as the charter would permit ; that the p^ojet 
de hi for the fulfilment of the treaty should be laid before 
them ; that all the constitutional powers of the King and 
the Cabinet should be exerted to carry it ; and that the re- 
sult should be made known early enough to enable the 
President to communicate it to Congress in the annual 
message. 

Nevertheless, His Majesty did not find it convenient to 
bring the subject before the new Chamber at its summer 
session, nor previously to the assembling of Congress, — a 
delay which gave rise to a more palpable cause of affront 
to the dignity of the French nation than had existed in 
the supposed indecorum of drawing a bill of exchange for 
money which was overdue.* The President, in his an- 
nual message of December, 1834, recited the whole his- 
tory of the affair in very concise and plain terms, and 
proceeded bluntly to recommend that the United States 
should take redress into their own hands, and that the 
Executive might be authorized to make reprisals upon 
French property, in case no provision should be made for 
payment of the debt at the then approaching session of 
the Chamber of Deputies. 

* The drawing of the bill of ex- tions between nations should be con- 
change by our Secretary of the ducted with other ceremonies than 
Treasurv ivas an unusual and in- those which are proper among in- 
decorous proceeding. There are dividuals and traders, 
good reasons why financial transac- 



g96 '^^^^ ^^ EDWARD LIVINGSTON. 

News of the contents of the message reached France 
on the 8th of January, and produced there intense and 
general excitement, which was heightened by an indiscreet 
pubHcation on the part of our government about the 
same time of a portion of Mr. Livingston's confidential 
despatches, detailing some conversations with and friendly 
suggestions made by the King. The pride of the nation 
was now aroused and protested loudly against making any 
payment under what it chose to regard as a national men- 
ace on the part of the United States. The King and his 
ministers were sorely perplexed. On the 13th of the 
month, Mr. Livingston received from the Comte de 
Rigny, Minister of Foreign Affairs, a communication 
which, after commenting at length and in an acrid 
tone upon the President's message to Congress, in- 
formed him that His Majesty's government was prepar- 
ing to present a bill for giving sanction to the treaty when 
the strange message of December 1st came and obliged 
it again to deliberate on what course it should pursue ; 
that, though deeply wounded by imputations to which the 
Comte would not give a name, the government did not 
wish to retreat absolutely from a determination already 
taken, in a spirit of good faith and justice ; that it would 
still, notwithstanding the difficulties caused by the provo- 
cation which President Jackson had given and the irrita- 
tion it had produced upon the public mind, ask the Cham- 
ber of Deputies for the appropriation ; but that, at the 
same time, His Majesty had considered it due to his own 
dignity no longer to leave his Minister at Washington, 
exposed to hear language so offensive to France ; that M. 
Serrurier would therefore be ordered home ; that the 
whole of this communication was made in order that Mr. 
Livingston might take those measures which might seem 
to be its natural consequences ; and that the passports 



MINISTER TO FRANCE. Qm 

which Mr. Livingston might desire were, therefore, at 
his disposition. 

On receiving this note, Mr. Livingston's first impres- 
sion, according with his strong personal inclination, was 
that he ought to demand his passports and leave France ; 
but, after reflection, he determined to await instructions 
from the President, and, in the mean time, keep aloof 
from the King and his ministers. He immediately wrote 
to the Comte de Rigny, that, if the note of the latter was 
intended as an intimation of the course which, in the 
opinion of His Majesty's government, he ought to pursue 
as the natural result of M. Serrurier's recall, he could 
take no directions or follow no suggestions but those of 
his own government which had sent him there to repre- 
sent it ; but if it was intended as a direction that he should 
quit the French territory, he would comply with it at 
once, leaving the responsibility where it ought to belong. 
At the same time, he promised a full answer to the 
" grave matter " in the body of the minister's note. In 
taking this course, Livingston submitted to a severe sac- 
rifice of personal feeling, the sense of which he strongly 
expressed in his despatches and private letters. 

The answer which he promised to the body of the 
Comte de Rigny's note was immediately prepared, and 
delivered before the end of the month, while he remained 
without any instructions, and uncertain what the views of 
the President would be. This paper, produced under 
circumstances of such difficulty, is a masterpiece of rea- 
soning, of eloquence, and of temper. Referring to the 
complaints in the Comte de Rigny's note of the terms 
used by the President in the message, which he informs 
His Majesty's ministers was not addressed directly to 
them, he proceeds to make the following point against the 
fastidious Frenchman : — 



398 LIFE OF EDWARD LIVINGSTON. 

" I shall endeavor, by a plain exposition of facts, to 
repel those charges ; I shall examine them with the free- 
dom the occasion requires, but, suppressing the feelings 
which some parts of your Excellency's letter naturally 
excite, will, as far as possible, avoid all those topics for 
recrimination which press upon my mind. The observa- 
tion I am about to make will not be deemed a departure 
from this rule, because it is intended to convey informa- 
tion which seems to have been wanted by His Majesty's 
minister when, on a late occasion, he presented a law to 
the Chamber of Deputies. It is proper, therefore, to 
state, that, although the military title of General was glori- 
ously acquired by the present head of the American gov- 
ernment, he is not, in official language, designated as 
General Jackson^ but as ' the President of the United 
States,' and that his communication was made in that 
character." 

The body of this letter is a detailed and spirited vindi- 
cation of the President and of his message, against the 
several criticisms in the French minister's note, yet its 
final tone is an ingenious appeal for the preservation of 
peace. The following are its closing paragraphs : — 

"I have no mission, Sir, to offer any modification of 
the President's communication to Congress ; and I beg 
that what I have said may be considered with the reserve 
that I do not acknowledge any right to demand, or any 
obligation to give, explanations of a document of that 
nature. But the relations which previously existed be- 
tween the two countries, a desire that no unnecessary 
misunderstanding should interrupt them, and the tenor 
of your Excellency's letter, (evidently written under 
excited feeling,) all convinced me that it was not incom- 
patible with self-respect and the dignity of my country 
to enter into the detail I have done. The same reasons 



MINISTER TO FRANCE. 



399 



induce me to add, that the idea, erroneously entertained, 
that an injurious menace is contained in the message, 
has prevented your Excellency from giving a proper 
attention to its language. A cooler examination will 
show, that, although the President was obliged, as I have 
demonstrated, to state to Congress the engagements 
which had been made, and that in his opinion they had 
not been complied with, yet, in a communication not 
addressed to His Majesty's government, not a disrespect- 
ful term is employed, nor a phrase that his own sense of 
propriety, as well as the regard which one nation owes 
to another, would induce him to disavow. On the con- 
trary, expressions of sincere regret that circumstances 
obliged him to complain of acts that disturbed the har- 
mony he wished to preserve with a nation and govern- 
ment to the high character of which he did ample jus- 
tice. 

" An honorable susceptibility to everything that may, 
in the remotest degree, affect the honor of the country, 
is a national sentiment of France ; but you will allow. 
Sir, that it is carried too far when it becomes impatient 
of just complaint, when it will allow none of its acts to 
be arraigned, and considers as an offence a simple and 
correct examination of injuries received, and as an insult 
a deliberation on the means of redress. If it is forbid- 
den, under the penalty of giving just cause of offence, 
for the different branches of a foreign government to 
consult together on the nature of wrongs it has received, 
and review the several remedies which the law of nations 
presents and circumstances justify, then no such consul- 
tation can take place in a government like that of the 
United States, where all the proceedings are public, with- 
out at once incurring the risk of war, which it would be 
the very object of that consultation to avoid." 



400 LIFE OF EDWARD LIVINGSTON. 

Livingston now felt a keen anxiety to hear an approval 
of his conduct by the President and people at home, for 
which he was obliged to wait until late in March. Under 
date of the 8th of that month, Mr. Van Buren wrote to 
him : — 

" Mr. Forsyth met me this morning at the President's 
with your last letter to de Rigny, and we went through it 
very deliberately. I could not express myself too strongly 
for the opinion I really entertain of its merits. Remem- 
ber what I say to you, that hereafter, when the correspond- 
ence is published, it will be selected from the mass as 
giving the clearest, the strongest, and the best-tempered 
views of the matters in controversy. The General, as 
well as Forsyth, was delighted with it." 

The President officially informed Mr. Livingston, not 
only that his course was warmly approved, as wise and 
patriotic, but that, if he had chosen to follow his incli- 
nation and abandon the mission, and had quitted France 
with the whole legation, that course would not have 
surprised or displeased the President. As it was, he 
was directed, if the appropriation should be rejected, to 
leave France in a United States ship of war, with all 
the legation ; but, if the appropriation should be made, 
to retire to England or Belgium, leaving Mr. Barton 
as Charge cV Affaires^ and to await further instructions. 

The Chamber of Deputies soon determined to appro- 
priate the money, but, at the same time, to vindicate 
what it chose to consider the offended dignity of the 
nation. The bill was therefore passed on the 18th of 
April, with a proviso that the payment should not be 
made until the French government should have received 
satisfactory explanations of the terms used by the Presi- 
dent in his annual message. 

For such a posture of affairs Mr. Livingston's in- 



f- 



MINISTER TO FRANCE. 



401 



structlons did not provide, and he was obliged again to 
rely upon his own judgment in determining upon an 
important step, which was, to demand his passports and 
come home, leaving Mr. Barton at Paris as Charge cV 
Affaires. He signalized his departure by a communi- 
cation addressed to the Due de Broglie, the Minister 
of State for Foreign Affairs, in which office he was 
the successor, as he had been the predecessor, of the 
Comte de Rigny. This paper, expressly conceived 
with a view to keeping open a door of peace between 
the two countries, contains the following piece of thor- 
ough argumentation and plain speaking : — 

" The President, as the chief executive power, must 
have a free and entirely unfettered communication with 
the coordinate powers of the government. As the or- 
gan of intercourse with other nations, he is the only 
source from which a knowledge of our relations with them 
can be conveyed to the legislative branches. It results 
from this, that the utmost freedom from all restraint, in 
the details into which he is obliged to enter of interna- 
tional concerns and of the measures in relation to them, 
is essential to the proper performance of this important 
part of his functions. He must exercise them without 
having continually before him the fear of offending the 
susceptibility of the powers whose conduct he is obliged 
to notice. In the performance of this duty, he is subject 
to public opinion and his own sense of propriety for an 
indiscreet, to his constituents for a dangerous, and to his 
constitutional judges fur an illegal, exercise of the power; 
but to no other censure, foreign or domestic. Were any 
foreign powers permitted to scan the communications of 
the Executive, their complaints, whether real or affected, 
would involve the country in continual controversies ; 
for, the right being acknowledged, it would be a duty 

51 



4,02 LIFE OF EDWARD LIVINGSTON. 

to exercise it, by demanding a disavowal of every phrase 
they might deem offensive, and an explanation of every 
word to which an improper interpretation could be given. 
The principle, therefore, has been adopted, that no foreign 
power has a right to ask for explanations of anything 
that the President, in the exercise of his functions, thinks 
proper to communicate to Congress, or of any course he 
may advise them to pursue. This rule is not applicable 
to the government of the United States alone, but, in 
common with it, to all those in which the constitutional 
powers are distributed into different branches. No such 
nation, desirous of avoiding foreign influence, or foreign 
interference in its councils, — no such nation, possessing 
a due sense of its dignity and independence, can long 
submit to the consequences of this interference. When 
these are felt, as they soon will be, all must unite in 
repelling it, and acknowledge that the United States are 
contending in a cause common to them all, and more 
important to the liberal governments of Europe than 
even to themselves ; for it is too obvious to escape the 
slightest attention, that the monarchies of Europe by 
which they are surrounded will have all the advantage 
of this supervision of the domestic councils of their 
neighbors, without being subject to it themselves. It is 
true, that, in the representative governments of Europe, 
executive communications to legislative bodies have not 
the extension that is given to them in the United States, 
and that they are, therefore, less liable to attack on that 
quarter. But they must not imagine themselves safe. 
In the opening address, guarded as it commonly is, every 
proposition made by the Ministry, every resolution of 
either Chamber, will offer occasions for the jealous in- 
terference of national punctilio ; for all occupy the same 
grounds. No intercommunication of the different branches 



MINISTER TO FRANCE. 493 

of government will be safe ; and even the courts of jus- 
tice will afford no sanctuary for the freedom of decision 
and of debate ; and the susceptibility of foreign powers 
must be consulted in all the departments of government. 
Occasions for intervention in the affairs of other coun- 
tries are but too numerous at present, without opening 
another door to encroachments ; and it is no answer to 
the argument to say that no complaints will be made but 
for reasonable cause, and that of this the nation com- 
plained of being the judge, no evil can ensue. But this 
argument concedes the right of examining the commu- 
nications in question, which is denied : allow it, and you 
will have frivolous as well as grave complaints to answer, 
and must not only heal the wounds of a just national 
pride, but apply a remedy to those of a morbid suscepti- 
bility. To show that my fear of the progressive nature 
of these encroachments is not imaginary, I pray leave 
to call your Excellency's attention to the enclosed report 
from the Secretary of State to the President. It is 
offered for illustration, not for complaint. I am in- 
structed to make none. Because the government of 
France has taken exceptions to the President's opening 
message, the Charge d' Affaires of France thinks it his 
duty to protest against a special communication, and to 
point out the particular passages in a correspondence of 
an American minister with his own government, to the 
publication of which he objects. If the principle I con- 
test is just, the Charge d' Affaires is right ; he has done 
his duty as a vigilant supervisor of the President's cor- 
respondence. If the principle is admitted, every diplo- 
matic agent at Washington will do the same, and we 
shall have twenty censors of the corresj)ondence of the 
government and of the public press. If the principle 
is correct, every communication which the President 



404. LIFE OF EDWARD LIVINGSTON. 

makes, in relation to our foreign affairs, either to the 
Congress or to the public, ought in prudence to be pre- 
viously submitted to these ministers, in order to avoid 
disputes and troublesome and humiliating explanations. 
If the principle be submitted to, neither dignity nor in- 
dependence is left to the nation. To submit even to a 
discreet exercise of such a privilege would be trouble- 
some and degrading, and the inevitable abuse of it could 
not be borne. It must, therefore, be resisted at the 
threshold, and its entrance forbidden into the sanctuary 
of domestic consultations. But, whatever may be the 
principle of other governments, those of the United 
States are fixed : the right will never be acknowledged, 
and any attempt to enforce it will be repelled by the un- 
divided energy of the nation." 

In these scenes and labors, Livingston did not forget 
his plan for the reformation of penal law, which he had 
designed, not only for Louisiana, but for the world. He 
distributed the work wherever he thought it could be 
useful, and sent copies to strangers among the rising 
men whose influence he thought might aid in securing 
its examination by legislators and publicists. The ac- 
knowledgments he received were of a character to satisfy 
whatever desire for applause was mingled with the phi- 
lanthropy which had inspired his patient labors in framing 
and explaining his system. M. Villemain wrote to him, 
thanking him for his " precious gift," and saying, " I 
study it with the profound interest which such a work, 
without example from the hand of any one man, in- 
spires." He added, " It is impossible not to be struck 
with an order so luminous, so simple, and with such deep 
philosophy in a matter so long given up to barbarism 
and subtlety. Very certainly, such a reform in penal 
jurisprudence reflects more credit upon our modern times 



MINISTER TO FRANCE. 



405 



than the greatest discoveries in the arts, in literature, and 
in science; in fact, it is the perfecting of the first of 
sciences, — social science. The special report of the in- 
troduction to the Code of Crimes and Punishments has 
not less interested me, from the grandeur and simplicity 
of its aims ; and even the phraseology of the enactments 
you propose presents a conciseness, a clearness, and, if 
it may be so expressed, a probity of diction, [prohiU de 
langage^ which cannot be too much admired." Victor 
Hugo, then a young man, but already renowned for those 
literary labors, aiming towards the social benefit of the 
more suffering part of mankind, in which he is even at 
this moment, with a large increase of fame, definitely 
persevering, wrote to Livingston the following letter: — 

" Monsieur : Vous m'envoyez un beau livre, — un 
livre utile, — un livre modele. Je vous remercie. Des 
que mes mauvais yeux malades me le permettront, je 
m'empresserai de lire les passages que vous me fiiites 
I'honneur de m'indiquer dans I'ouvrage entier. Permettez 
moi de vous dire en attendant que depuis longtemps je 
connais vos travaux. Vous etes du nombre des hommes 
qui ont le plus et le mieux merite de I'humanite dans 
ce siecle. Vous etes plus heureux que nous dans votre 
pays. Vous defrichez un sol vierge ; vous pouvez realiser 
les idees a progres en moins d'annees que nous n'en met- 
tons ici a les discuter; vous assistez vivans a la moisson 
du grain que vous avez seme ; nous, nous avons tout au 
plus I'espoir que d'autres le recolteront sur notre tombe. ^ 

" C'est un devoir pour les hommes avances de tous 
les pays de se tendre la main. La grande pensee qui 
les occupe, I'amelioration du sort general de I'humanite, 
leur est comme une commune patrie, placee au dessus 
de toutes les delimitations de langues, de climats, et de 



406 LIFE OF EDWARD LIVINGSTON. 

frontieres. Permettez moi done, Monsieur, de vous re- 
garder eomme un compatriote, et de vous prier d'agreer 
avec tous mes remerciemens Fassurance de mes sentimens 
de cordialite et de haute consideration. 

"Victor Hugo. 

"27 Mars, 1834." 

Neither this height of reputation which his code had 
brought him, nor the constant and anxious labors of his 
mission, nor any lassitude of advanced age, caused Liv- 
ingston to lose a single opportunity of extending the 
public knowledge of his system. Under his pen, the 
subject was never trite, the reiteration of his views 
never wearisome. He could clothe the old thoughts 
in a new dress as often as occasion demanded, and 
could always invest with a fresh interest the same topics 
which, years before, he had seemed to exhaust. His 
ardor and his eloquence came from an unfailing source. 
Never had he enforced his general views with more zeal 
or greater spirit than in a long letter responsive to a com- 
munication he received, in February, 1835, from the 
Howard Society of New Jersey. The following pas- 
sages are parts of this letter : — 

" Every citizen ought to impress on his representa- 
tive the absolute necessity of the reform without which 
the best penal laws are ineffectual. Let him be told 
that it is his particular duty to correct this abuse ; that 
he cannot shift it off on the collective body to which he 
belongs; that he and all who, like him, are silent on this 
subject, are the moral murderers of hundreds who, from 
the impure contact which his negligence continues to 
force upon them, are cut off from society, or live only 
to prey upon it; bid him act, and act promptly; that, if 
his habits of life do not enable him to prepare the neces- 



MINISTER TO FRANCE. 407 

sary laws, It is his duty to urge those who are equal to 
the task to perform it. Let him use one half the exer- 
tion that he would for chartering a bank or building a 
bridge, and the work will be done, and it will be worth 
more than all the banks that were ever chartered, and all 
the canals that were ever dug. I have for years urged, 
in writing and in conversation, this indispensable reform, 
which lies at the bottom of all sound penal legislation. 
Every day I am more convinced of its necessity. I seize 
the opportunity which your letter affords of reiterating 
my efforts. Those of your Society will, I trust, prove 
more effectual than mine have been, and enable New 
Jersey to set an example to her neighboring States which 
they cannot fail to follow. 

" I cannot conclude without expressing an earnest hope 
that your Society may see the necessity of employing its 
collective influence and that which the high character of 
all and the station of many of its members individually 
give them, to endow your State with that which no State 
has yet had the happiness to possess, a complete system 
of penal law, resting on the great preventive basis of 
general education, religious, moral, and literary, and of 
which all the parts shall be adapted to each other. 

"No country, I repeat, has ever had such a system; 
and none will have it as long as the patchwork plan, of 
applying remedies only when evils become intolerable, 
shall be pursued. 

" New Jersey has an opportunity of rising to a proud 
preeminence, in jurisprudential legislation, above her two 
powerful neighbors, by constructing the whole of the 
new machine, and putting it at once in motion, while they 
are trying separately the effects of some of its detached 
springs and wheels. These partial experiments become 



408 LIFE OF EDWARD LIVINGSTON. 

less efficient, and sometimes totally fail, because the in- 
stitutions on which they are made are unsupported, and 
thus bring discredit on the whole system. Thus the pen- 
itentiary plan loses one half its efficiency and many of its 
advocates, because it is counteracted by indiscriminate con- 
finement before trial, and is not supported by proper laws 
to regulate pauperism and vagrancy. If one State could 
be prevailed on to give the plan a fair trial, by a connected 
series of well-adapted institutions, my life for it, the ef- 
fects would exceed the most sanguine expectations; and, if 
it failed, how easy to return to the present system, if sys- 
tem it may be called, which consists only of detached parts. 

" Although the education which I received in New 
Jersey was sadly imperfect, interrupted by the military 
operations of the Revolution, and unaided by the numer- 
ous professorships, the libraries and apparatus, which now 
offer themselves to the more favored students of modern 
times, I yet feel an attachment to the State in which this 
slight foundation was laid, and would be most happy to 
add, in any way, to its honor and the prosperity of its in- 
habitants. Good laws, faithfully executed, will secure 
both more effectually than great cities or extensive ter- 
ritory. The first are within your reach ; the other fortu- 
nately you do not possess, for I think they would impede 
rather than aid your progress to the high eminence the 
first will enable you to attain." 

The first few months of Livingston's residence in 
France were the last months of Lafayette's life. Dur- 
ing this period, the efforts of the Minister to secure the 
fulfilment of the treaty were warmly seconded by the 
illustrious Franco- American, both in the Chamber of 
Deputies, of which he and his son were members, and 
out of it. The social intercourse of the two ancient 



MINISTER TO FRANCE. ^Qg 

friends was now constant and mutually delightful. The 
following letter to Livingston was, certainly, one of the last 
ever dictated by Lafayette. The body of it is in the 
handwriting of an amanuensis ; but the signature, feebly 
executed, is his own. Three days after its date, the at- 
tack which it mentions took a more acute form, and, on 
the 19th of the same month, he expired. 

"Paris, May 6, 1834. 

" Since I had the pleasure to see you, my dear friend, I 
have had an attack of gouty fever, which kept me in my 
bed. I hope it is or will be soon over. I have received a 
letter from the Abolition Society of Glasgow, a respecta- 
ble association it appears, the Lord Provost and principal 
men being at the head of it. They have made me an 
honorary member, and mean to do so for other members 
of the House ; but they so strenuously complain of the 
state of society in that respect in a part of the United 
States, and request my answering a few questions, which 
perhaps will not please them so much as if I was to go 
along with them in the reproaches. You know I would 
this moment have my right arm cut off" to rid the United 
States of that lamentable evil. Yet I do not think that 
foreign, and particularly British, lectures will much ad- 
vance the general disposition in that respect. I wish 
confidentially to communicate my answer to you. 

" I see you cannot get the papers from the Department 
of Foreign Affairs. This whole business is strange. 

" There was a sad report spread yesterday in the Juste 
milieu circles: they were saying that a telegraphic de- 
spatch had arrived announcing, that, in the rejoicing of the 
French and foreign navies at Toulon, for the St, Philip, 
one of the guns of an American frigate had been care- 
lessly loaded, or left loaded, with a cannon-ball, and that 

52 



410 LIFE OF EDWARD LIVINGSTON. 

one Frenchman had been killed and three wounded. I 
still hope it is not true. When you hear anything of it, 
or receive any letter to the contrary, be pleased to let me 
know it. 

" How are you, and when do you go 1 Send me my 
letter back to-morrow morning, for it is near two months 
since I received theirs. With my fellow-citizens of the 
South you know I have been more plain and earnest on 
the subject than any man living; but I do not like to treat 
the matter with foreigners, particularly with those whose 
ancestors have entailed the evil upon us. 

" Your affectionate friend, 

" Lafayette." 

In the autumn of 1834, Mr. Livingston, accompanied 
by his wife and Mrs. Barton, made a journey through 
Switzerland and Germany. He enjoyed it greatly, though 
the primary object of the trip was to shake off an inter- 
mittent fever which he had contracted, and from which it 
had the effect to restore him. 

At Geneva, he was entertained by M. de Sellon, an ac- 
tive philanthropist, who showed him a monument in the 
form of a temple, which he had, the year before, erected 
and consecrated " to the inviolability of the life of man." 
On the facade of this monument were twelve inscriptions, 
engraved in the marble, to the memory of as many great 
names, including those of Fenelon, Beccaria, and Wilber- 
force. One of these inscriptions was as follows: — 

A 

LIVINGSTON. 

IL DEMANDA 
L'ABOLITION DE LA 
PEINE DE MORT A 

L'AMERIQUE. 



MINISTER TO FRANCE. 411 

On the same journey, when at Heidelberg-, he sent his 
card to Professor Mittermaier, the voluminous and en- 
lightened advocate of jurisprudential reforms, w^ho has 
lately been styled a German Brougham, with whom, dur- 
ing the preparation of the penal code, he had had some 
correspondence, but whom he had never seen. The Pro- 
fessor immediately called at his hotel, and, on being shown 
to his room, rushed into his arms, hugged and kissed him, 
to the astonishment as well as amusement of Mrs. Liv- 
ingston and her daughter, not to speak of the embarrass- 
ment which such a form of salutation must have caused 
to Livingston himself. 

The following passage shows how a statesman and re- 
forming jurist, though past his seventieth year, may make 
the transition " from grave to gay," and enter for a time 
into the very spirit of the younger and less thoughtful 
crowd. It is taken from a letter written by Livingston 
to Dallas in December, 1834. 

" Tell Mrs. Dallas that her townswoman, Mrs. W., is 
making the greatest sensation in all the fashionable cir- 
cles. On her first arrival I had the pleasure of intro- 
ducing her at Lady Granville's soiree, which happened 
to be a very crowded one. It is impossible to describe 
the effect produced by her entrance. ' Who is she 1 
Where does she come from ? How beautiful ! How 
graceful ! How modest ! How well dressed ! An an- 
gel ! A Hebe ! ' was exclaimed by an hundred voices ; 
and this, although," etc., etc. 

Men who possess extreme gentleness of temper do not 
lack opportunities for its exercise ; and if Livingston was 
never known to be angry, it was not for want of what 
most persons would esteem abundant provocation. At 
Paris he was unfortunate in the choice of a valet de cJiam- 
hre, a mulatto who had been highly commended to him. 



41S LIFE OF EDWARD LIVINGSTON. 

This man was ingenious in dereliction, and at length had 
to be discharged. The following was his last perform- 
ance while in Mr. Livingston's service. The latter sent 
his watch by him to a maker's, to be repaired. On his 
return he reported that the work would be done by a cer- 
tain time. The period passed; he was sent to bring the 
watch home. He came back with a message that the 
repairs were not yet finished. This was repeated several 
times, and at last Mr. Livingston, in his mildest but firm- 
est tones, directed him to ask the maker to return his 
watch, whether mended or not. At this point the man 
fell upon his knees, and confessed, that, having urgent need 
of a small sum of money, he had left the watch, not at 
the maker's, but at the mont-de-pieU. Mr. Livingston 
now seemed to feel that it was incumbent upon him to 
exhibit a good deal of wrath, and he rebuked the fel- 
low with some severity ; but he had no inclination to 
prolong the scene, and, hastening to the room where his 
family were sitting, his features beaming with mirthful- 
ness, he told them the story of the unhappy valet., in a 
manner evincing that he was impressed by the ludicrous 
features of the misdemeanor, rather more than by its 
flagrancy. 

Mr. Livingston, always a prompt and industrious letter- 
writer, while in France, besides a regular correspondence 
with many public men at home, including Andrew Jack- 
son, James Madison, Daniel Webster, Edward Everett, 
George M. Dallas, Joel R. Poinsett, Charles J. Ingersoll, 
and others, continued to write often to his relations and 
friends. To his aged sister, Mrs. Garretson, he did not 
forget to send a minute account of the incidents of his 
outward voyage, including a singular dream. And he 
wrote for her, when she was in the eighty-third year of 
her age, a full report of his travels in Switzerland and 



MINISTER TO FRANCE. 



413 



Germany. Of this last letter the following- is a pas- 
sage : — 

" Your very affectionate and good letter reached me 
among the mountains of Switzerland, where I had gone 
for the benefit of my health. Thank God, it is now re- 
stored, and I am enabled without inconvenience to per- 
form the duties of my place. Believe me, my dear sister, 
I feel the force of your reflections ; but I cannot believe 
that a strict attention to the duties vi^hich our country or 
our situation in life require is incompatible with those due 
to our Creator. I endeavor, therefore, to reconcile them. 
If I could think this were impossible, I would at once re- 
nounce the former ; for with you I am persuaded that the 
last is of paramount importance." 

During the first year of General Jackson's administra- 
tion, Mr. Livingston's brother-in-law, Auguste Davezac, 
who in the campaign for the defence of New Orleans had 
attained the military rank and title of Major, was de- 
spatched as Charge d' Affaires of the United States at the 
Hague. He was a much younger man than Livingston, 
for whom his respect was almost worship. He possessed, 
perhaps, more talent than judgment, and Livingston, who 
entertained the warmest affection for him, watched his di- 
plomatic career with a parental solicitude. Both before and 
after going himself to France, he constantly conveyed to 
him, in the most gentle manner, such advice as he thought 
he might most stand in need of. The tone of all his let- 
ters to the Charge d' Affaires was like the concluding sen- 
tence of one of them, in which, while Secretary of State, 
he informed him of his confirmation by the Senate and 
of a provision for credit with his bankers, — " Live pru- 
dently, happily, et non nostri immemor.'' 

Livingston could feelingly give to one whose welfare he 
had at heart the advice to live prudently. We have seen 



414. LIFE OF EDWARD LIVINGSTON. 

how long- and how severely he had himself expiated the 
want of common financial skill. The penalty for this 
innate defect he was destined to continue paying-, in some 
degree, to the end. While he lived in France, though 
possessing a good deal of landed property, his command 
of ready money, beyond the inadequate salary of his of- 
fice, was not sufficient to exempt him from anxiety and 
the practical study of economy. Shortly after reaching 
Paris, he wrote to Davezac that he hoped they would all 
meet at Montgomery Place in a year, or eighteen months 
at farthest. " In two years," he added, " the necessary 
expenses of an establishment here would embarrass me 
greatly." In the course of one of the earliest of his 
public despatches to the Secretary of State at Washing- 
ton the following passage occurs : — 

" I have, since my arrival, been living inconveniently 
in an hotel, taking time to get my establishment on a 
footing of economy united with the necessary respecta- 
bility of my station ; and I find that the four articles of 
house-rent, coach-hire, servants, and fuel will take about 
seven thousand dollars, leaving for all my other expenses, 
in this expensive capital, two thousand dollars. I make 
this statement, not because I can have any interest in it, 
for I am not rich enough to remain here until some rem- 
edy could be applied to the evil, but for the honor of the 
country, and to enable it to avail itself of the services of 
others than men of large fortune." 

On receiving from the French government the pass- 
ports which he had demanded, he felt a strong desire to 
make some further excursions, particularly in England, 
before returning home ; but his sense of duty obliged 
him to forego this pleasure, in order to make the break- 
ing up of the mission a perfectly unequivocal act. On 
the eve of his embarkation he wrote to Davezac : — 



m 



MINISTER TO FRANCE. 415 

"Havre, 4th May, 1835. 

" I was very happy, my dear Davezac, to find that you 
saw the condition annexed to tlie law providing for the 
payment of our indemnity in the hght I do, and approved 
of my return. The necessity for this movement disap- 
pointed me, for I wished very much to pass some time 
with you and afterwards in England ; but this was impos- 
sible after the refusal to pay, for such in effect is the an- 
nexation of a degrading condition. My stay in Europe 
would be considered as evidence of a desire to resume 
my mission. 

" We shall probably now, my dear Davezac, meet no 
more, unless you should get tired of diplomacy before I 
die, which is not very probable. Whenever you do, come 
to Montgomery, and we will lead a happier, although less 

splendid life than at Paris or the Hague And you, 

— how do your affairs at Amsterdam prosper ] Let me 
know all about you when you write, which I hope you 
^vill do frequently. 

" We have been here four or five days, waiting the ar- 
rival of the frigate from Cherbourg, where she went to 
take in water. She is just returned, and we embark to- 
morrow. 

" God bless you, my dear Davezac, 

" Yours affectionately, 

" Edw. Livingston." 

The frigate in which Mr. Livingston, with his family, 
was brought home was the Constitution, commanded by 
Commodore Elliott, which arrived at New York on the 
23d of June. Intelligence of the state in which he had 
left the affair with France had preceded him, and pre- 
pared the country to express complete and universal satis- 
faction with his conduct. So general and popular was 



416 LIFE OF EDWARD LIVINGSTON. 

the feeling, that crowds of people greeted him at the 
landing, and followed his carriage to the house of his 
brother, in Greenwich Street, in front of which they 
remained calling for him until he appeared at the door 
and said : — 

" Fellow-citizens, I feel much happiness at your cord- 
ial welcome of my return, and beg to assure you that 
during my mission I have studied all that was due to the 
dignity of my country, its general interest, and its wel- 
fare." 

Cheers greeted this concise speech, and the crowd dis- 
persed. The next day, Mr. Livingston, in accordance 
with a request of the Common Council, held a public 
reception in the Governor's room at the city-hall. He 
received an invitation to a public dinner to be given in 
his honor, from a large meeting of citizens which as- 
sembled on the day of his arrival. The invitation, which 
was signed by Cornelius W. Lawrence, the Mayor, and by 
Preserved Fish, Enos T. Throop, Samuel Jones, Thomas 
J. Oakley, William Leggett, J. Fenimore Cooper, C. 
C. Cambreling, Theodore Sedgwick, Junior, John Mc- 
Keon, and many others, contained the following para- 
graph : — 

" Your fellow-citizens are desirous of giving you, upon 
your return to this your native State, that cordial wel- 
come due to one who has done so much to illustrate the 
American name ; to show by the warmth of that greeting 
that they place a just estimate upon the services of their 
public men, and that they understand and appreciate the 
embarrassment and harassing anxieties which have met 
you at every stage of this question; that they recognize 
in your recent acts the firm characteristics which have 
marked the whole of your eminent and useful public 
life; and that your unfaltering zeal, your wise aversion 



MINISTER TO FRANCE. 4iy 

to violent measures, and your proud and fervent nation- 
ality of spirit, command the unqualified respect and ad- 
miration of your countrymen." 

Mr. Livingston accepted this honor, and at the dinner, 
which took place at the City Hotel, on the 16th of July, 
and at which the Mayor, Mr. Lawrence, presided, was 
toasted in the following terms : — 

"Edward Livingston. As a patriot and statesman he 
belongs to America ; as a jurist and philosopher, to the 
world. His exposition of the S5th April embodies the 
sentiments of his countrymen, and stands as a text-book 
for American diplomatists." 

Upon rising to respond to this compliment, Living- 
ston betrayed — I will not ask the statesmen of the pres- 
ent day to credit the fact — an unmistakable diffidence, 
such as has not often been witnessed in this country, 
whose public men, whatever other qualities they may 
have lacked, have not usually been wanting in self-pos- 
session. The following is the report of his opening re- 
marks, which were received with demonstrations of gen- 
eral enthusiasm : — 

" I had arranged some phrases which I thought might 
suit the occasion. But they are driven from my mind 
by the impulse which the scene around me most naturally 
produces. I find them tame, flat, powerless, to express 
the feelings by which I am excited, — agitated, — almost 
overpowered. 

"Gentlemen, I did not expect this. I returned 
without having attained final success in my mission. I 
returned with the satisfactory, but humble consciousness 
of having done my duty; and I anticipated no other 
pleasure on my return than the greetings of personal 
friends, and that exquisite sensation which one who loves 
his country feels, when, after a long absence, his foot 
53 



4,18 LIFE OF EDWARD LIVINGSTON. 

presses his native shore. Such of you, Gentlemen, as 
have been abroad will understand this. But all of you 
must join me in lamenting, that the poverty of our lan- 
guage has no other word than the vague one of country 
to express the relation between it and its citizens. We 
have no derivative from the patria of the Romans, and 
have not adopted the Faderlcmd of our Saxon ancestors. 
Nothing can be more appropriate to express the feeling, 
nothing more resembles filial duty and affection, than 
the obligation we owe to our native land, or the attach- 
ment which binds us by voluntary ties to the country 
of our adoption. But if we have not the word in our 
language, we have the sentiment in our hearts. Prop- 
erly cultivated, it will teach us, not only to support our 
country on occasions like the present, when it can ap- 
peal to all nations for the uniform moderation and jus- 
tice of its course, but, with the pious sons of the patri- 
arch, to veil even the occasional excesses of our common 
parent from the eyes of the world, not, like their degen- 
erate, unnatural brother, to exaggerate and expose them 
to derision, — to conceal, not to discover, the nakedness 
of the land, — to glory in its honor, to lament its misfor- 
tunes, to espouse its cause as our own, and identify our- 
selves with it in its prosperous or adverse fortune. This 
is patriotism, this is true love of country; and as it is 
common to all who hear me, I may be permitted to say, 
that it guided me in my conduct, cheered me during the 
difficulties of my mission, and that I looked to the con- 
sciousness of its having animated me for my best re- 
ward. 

" I repeat, Gentlemen, that I did not expect the recep- 
tion I have met with. But I should be guilty of an 
absurd affectation if I attempted to conceal the heartfelt 
pleasure it has given me. I thank you for myself. I 



MINISTER TO FRANCE. 



4<19 



thank you more for my country ; for I have not the vanity 
to beheve that any merit of mine could excite the enthu- 
siastic demonstrations that have been made ; and my feel- 
ings of personal gratification were lost in the higher enjoy- 
ment of national pride, when, amid the shouts that greeted 
my arrival, the first words I could distinguish were 
those which reprobated any unworthy concession. Never 
within my recollection, in the course of a long political 
life, has public sentiment, on any question, been so strong- 
ly expressed, — expressed as it should be, calmly but with 
energy, without bluster, without violence, in the language 
of high-minded men, who appreciate their own character 
and the dignity of their country. In a settled determi- 
nation to suflfer no degrading interference with our legis- 
lative councils, all party feelings seem forgotten, and the 
assurance I gave to the French government on my de- 
parture, that every attempt of this nature would be re- 
pelled by the undivided energies of the nation, seems 
nobly confirmed." 

The prominent names among those who conducted this 
public demonstration appear to have belonged mainly 
to members of one party, — that attached to General 
Jackson and his administration. The opposite party 
severely criticised the spirit which sought to have such 
a statesman, on such an occasion, all to itself. The "New 
York American," a journal of the opposition, observed 
upon the subject : — 

" So far as this dinner was intended as a party demon- 
stration, it was, we understand, quite successful, — the 
faithful who are in, and those who exj^ect to be in, office 
attending in full numbers. 

" So far as it was meant to pass, at home, for a com- 
pliment from his fellow-citizens at large, or to produce 
tlie impression abroad that all parties united in it, this fes- 



420 LIFE OF EDWARD LIVINGSTON. 

tival was, of course, a failure. Therein we think the 
party managers sinned alike against good policy and 
good taste ; for it is quite certain, such is the general 
satisfaction with Mr. Livingston's course as Minister in 
France, and especially with his last letter, that all sides 
would have cheerfully united in the compliment to him, 
— an occurrence that, of course, would personally have 
been more gratifying, and, for national effect abroad, 
greatly more striking. Party considerations, however, 
prevailed ; though not, we are persuaded, with the con- 
currence or approbation of Mr. Livingston." 

About the same time, Livingston was received, at a 
similar dinner in Philadelphia, with no less warmth of 
popular welcome. On the latter occasion he thus defined 
the position of the nation with respect to France : — 

" The case that has drawn forth this noble expression 
of national feeling is of novel occurrence. Heretofore 
we have contended for rights withheld, for interests in- 
vaded : we contended manfully, successfully, but never 
with perfect unanimity. Now, we are called on to con- 
sider a question of national dignity, unmingled with any 
other consideration; and the country shows by its unex- 
ampled unanimity that it considers this last as of para- 
mount importance. Lost rights may be recovered ; the 
battles of freedom, though ' sometimes lost,' are, in the 
end, ' always won.' Injuries to interest may be re- 
paired ; but the reputation of a country once lost can 
never be regained. 

'^ The people of the United States seem to be deeply 
sensible of this great truth ; and the cry which I first 
heard on my arrival, of ' No apology ! No concession ! ' 
has been repeated by the unanimous voice of the nation 
from the seaboard to the mountains, from the mountains 
to the great lakes and the valleys of the Mississippi. 



MINISTER TO FRANCE. ^^l 

Not only all the prejudices of party seem lost in this na- 
tional spirit, but strong- personal interests give way to 
the patriotic feeling which prompts even those who are 
interested in the claims on France to reject, with disdain, 
the idea of purchasing their payment by an act of na- 
tional dishonor. I renew, therefore, my congratulations 
to you and to the country on the noble spirit which 
pervades it." 

In the course of the same speech he gave the follow- 
ing expression to the inherent, essential republicanism of 
his nature : — 

" The occasion which has brought you together adds 
one more to the many preceding refutations of the charge 
of ingratitude against republics ; for the people have, on 
this occasion, most generously repaid moderate services, 
ordinary talents, and humble efforts, by the highest of all 
rewards, their approbation and applause. 

" No ! republics are not ungrateful ! The charge is 
made by the sordid and the vain, who think nothing 
valuable but gold, nothing honorable but titles, and that 
gaudy ribbons are the proper recompense for merit. 
No, Gentlemen, republics are not ungrateful, but they 
are judicious in their choice of rewards. They do not 
give hereditary honors to virtue and wisdom, which may 
descend to folly and vice. They do not wring its earn- 
ings from the hard hand of labor, that they may be poured 
out in pensions on the idle and unworthy. They do not 
decorate with stars and spangled garters, with ribbons 
and crosses and gewgaws, men who, if they have done 
anything that may seem to have deserved these childish 
toys, may afterwards prove unworthy of the decoration. 
But they give a nobler, a higher recompense for services, 
— they give their confidence; and the seal of their appro- 
bation is a prouder distinction than any that dangles 



4f^2 LIFE OF EDWARD LIVINGSTON. 

from the button-hole, or is embroidered on the breast 
of the titled courtier; and I feel myself more honored 
as well as gratified by the applauding voice of my fellow- 
citizens, by the grasp of their friendly hands, some of 
them hard with honest labor, by their countenances, 
beaming with the fire of patriotism, — infinitely more 
honored, than I could be by any titular appendage to 
my name that a monarch could bestow." 

It is perhaps superfluous to add that the whole conduct 
of Livingston while abroad received the hearty applause 
of the President and of all the members of the admin- 
istration. Indeed, not the administration only, but all 
parties, in Congress and the country, were in this sen- 
timent unanimous, and unanimous in a determination 
to go to war with France, if necessary, but never to 
give her the required explanation, — a determination 
which furnished the subject of one of the most impas- 
sioned and effective bursts of oratory from John Quincy 
Adams, the venerable ex-President, and leader of the 
opposition in Congress. The approbation of the Presi- 
dent was officially communicated to Livingston by the 
Secretaiy of State, in a note, responsive to his letter 
resigning office, which not only applauded his whole con- 
duct while in France, and especially his parting letter 
to the Due de Broglie, but referred to the regard and 
respect which many years of intimate association in peace 
and war had inspired in the President's breast, and de- 
clared that, although they had differed on some points 
of general policy, the minister's singleness of purpose, 
perfect integrity, and devotion to his country, had been 
always known to the President, who trusted that his 
friend's retirement might be but temporary. 



CHAPTER XVIII. 

CONCLUSION. 

Retirement of Livingston to Montgomery Place — Pursuits, Associa- 
tions, and Views — Visit at Washington — Last Appearance in the Su- 
preme Court — Allusion to Jefferson — Mr. Barton's Return from France 
— Culmination of the Difficulty between the two Governments — Letter 
of Advice from Livingston to the President, respecting the Message to 
Congress on that Subject — Mediation in the Affair by Great Britain — 
Settlement of the Dispute — Extract from Livingston's Last Letter to his 
Wife — Return to Montgomery Place — Illness and Death — Honors 
paid to his Memory — The Author's View of Livingston's Character. 

T IVINGSTON now retired to Montgomery Place, 
-"— ' with leisure to watch the daily changes in its foli- 
age, its scenery, and its prospects. For more than thirty 
years, in the midst of labor, excitement, and suffering, 
he had sighed for this kind of repose, and the habits ac- 
quired in so long a period of activity had not disqualified 
him for enjoying it, when finally attained. Some of his 
letters, written during the following months, picture 
warmly the delights of " a gorgeous fall foliage, listless 
sauntering, and nothing to do." Reading, correspondence, 
and long walks, upon which he sometimes carried his fish- 
ing-rod or fowling-piece, formed his principal occupation. 
An experiment which he made in transplanting, upon 
the lawn, in the month of August, a large locust-tree, 
afforded him a subject of the most lively interest. 

In the neighborhood of Montgomery Place were the 
country-seats of his brother, John R. Livingston, and 
of most of his surviving relatives. It would be difficult 
to paint in too strong colors the pride and affection with 



424< LIFE OF EDWARD LIVINGSTON. 

which he was regarded by this circle. He had been the 
yoimg-est and the favorite, as we have seen, of the old 
family household; those who still lived had, with true 
solicitude, watched his career during the long struggles 
through which he had passed, and now his achievements 
and fame were in some sense their reward as well as 
his own. His intellect had never been brighter, his 
manners never more genial, his affections never warmer 
than now. By all his intimate acquaintances he was 
looked upon as one of those rare men who, without any 
definite blemish upon their virtue or their temper, are 
nearly — for even human partiality has never pronounced 
any man to be entirely — perfect. The venerable Mrs. 
Garretson, who had been his playful correspondent sixty 
years before, who had followed his whole growth and 
career with a sister's, almost a mother's tenderness, and 
who certainly cherished a sound faith in the doctrines of 
the Methodist church, of which she had long been a 
member, used at this period to repeat an observation 
which seemed almost to imply that she found it difficult 
to understand how a natural heart such as his could 
need regeneration. 

The President, on receiving his resignation, had offi- 
cially said that he trusted his retirement would be but 
temporary ; but I do not find that he himself entertained 
any definite expectation of, or desire for, further public 
employment, though the following paragraph from a 
letter, dated the 1st of November, to one of the closest 
of his political friends shows that there were two offices 
to either of which he would not have been averse, if it 
had been fairly open to him : — 

" I answer you, my dear Dallas, as you desire, sin- 
cerely and very confidentially. I am not very desirous 
of place, but I cannot, while I enjoy my present state of 



CONCLUSION. 



425 



health, be entirely idle. Yet there are but two situations 
which have any attractions for me : the one I occupied 
at home, and the mission to England abroad, neither of 
which is there any chance of my obtaining; so that I 
shall most probably remain where I am, watching the 
hues of the revolving year, — as reasonable an occupa- 
tion, and probably as profitable a one, as any that politi- 
cal life would afford." 

To his son-in-law, who remained in France as Charge 
d^ Affaires of the United States, he had written in the 
month of August : — 

" I wish you were with us, my dear Barton, in this 
delightful retirement, which does not lose its charms for 
me by the comparison I make between its natural beauties 
and the highly improved grounds of England. I feel 
the same interest that I formerly felt in walking through 
the rough walks in our woods, and in planning new ones; 
but I want you to help me." 

In January, 1836, he visited Washington, to attend 
the term of the Supreme Court, where he was engaged 
to appear professionally in the case of the Municipal Au- 
thorities of the City of New Orleans, appellants, versus 
The United States, respondents. He was senior counsel 
for the appellants ; his junior associate was Daniel Web- 
ster, and the other side was very ably represented by 
Benjamin F. Butler, Attorney-General of the United 
States. The discussion was opened by Mr. Webster. 
Mr. Butler, in the course of his argument, and in sup- 
port of some of his positions, cited largely from Mr. 
Livingston's answer in the Batture case, and in such 
terms of respect and approval as elicited from the latter, 
in his closing address to the court, this digression : — 

" The reference to the pamphlet from which the argu- 
ment has been drawn, the flattering terms in which the 

54 



426 LIFE OF EDWARD LIVINGSTON. 

Attorney-General has been pleased to speak of it, and 
the possibility that in looking at it the court may recur 
to other parts than those immediately relating to the 
questions before them, oblige me to ask their indulgence 
for a single observation, irrelevant, it is true, to the 
case, but which I am happy to find an opportunity of 
making. That pamphlet was written under circumstances 
in which the author thought, and still thinks, he had 
suffered grievous wrongs, — wrongs which he thought, 
and still thinks, justified the warmth of language in which 
some parts of his argument are couched, but which his 
respect for the public and private character of his oppo- 
nent, always obliged him to regret that he had been forced 
to use. He is happy, however, to say that at a subse- 
quent period the friendly intercourse with which, prior 
to that breach, he had been honored, was renewed ; that 
the offended party forgot the injury, and that the other 
performed the more difficult task (if the maxim of a 
celebrated French author is true) of forgiving the man 
upon whom he had inflicted it. The court, I hope, will 
excuse this personal digression ; but I could not avoid 
using this occasion of making known that I have been 
spared the lasting regret of reflecting that Jefferson had 

descended to the grave with a feeling of ill-will towards 

" * 
me. ^ 

Whilst Mr. Livingston was at Washington on this 
occasion, Mr. Barton reached the capital on his return 
from France. He had been instructed to ask for the 
final determination of the French government as to the 
payment of the instalments due under the treaty, and, in 
case of a refusal to make the payment without further 
explanations, to return to the United States. These in- 
structions he had followed ; and the French Minister of 

* lo Peters's Reports, 691. 



CONCLUSION. 



4£7 



Foreig-n Affairs had communicated to him the deter- 
mination of His Majesty's government to pay the money 
as soon as that of the United States should have ex- 
pressed its regret at the misunderstanding which had 
arisen between the two governments, and should have 
made some further assurances, of which the minister, al- 
lowing himself a very broad latitude in construing the 
requirements of the law under which he was acting, 
proceeded to dictate the form.* Mr. Barton had there- 
upon demanded his passports, and, leaving the papers of 
the legation in custody of the consul of the United States, 
hastened to Washington to report the affair personally 
to the President. Mr. Livingston, whom he found there, 
accompanied him to the White House. On their way 
thither, they were joined by the Vice-President and the 
Secretary of State, who during the walk betrayed a 
good deal of anxiety as to the matter of the statement 
about to be made. This did not escape the notice of 
Mr. Barton. Turning to them as they were about to 
enter, he inquired of them, in a tone half playful, half 
earnest, — 

" Well, Gentlemen, shall it be oil or water "? " 
" Oh, water, by all means ! " exclaimed both, in the 
same breath. 

* The proviso annexed to the law the United States is ready, on its 

which authorized the fulfilment of the part, to declare to us, by addressing 

treaty forbade the payment of the its claim to us officially, in writing, 

money until "the French govern- that it regrets the misunderstanding 

ment should have received satisfac- which has arisen between the two 

tory explanations with regard to the countries ; that this misunderstand- 

messagc of the President of the Un- ing is founded on a mistake ; that it 

ion, under date of December 2, never entered into its intention to 

,834." — Moniteur of 19th April, call in question the good faith of 

1835. What the French govern- the French government, nor to take 

ment chose to regard as "satisfac- a menacing attitude towards France." 

tory explanations " will appear from And he added, " If the government 

the following extract from the Due of the United States does not give 

de Broglie's note referred to in the this assurance, we shall be obliged 

text. " We will pay the money," to think that this misunderstanding 

said he, "when the government of is not the result of an error." 



428 LIFE OF EDWARD LIVINGSTON. 

" That, Gentlemen, will, I think, be the effect of what 
I shall have to say." 

Mr. Livingston, during the whole time that had passed 
since Mr. Barton's arrival, had carefully avoided any 
question as to the nature of the communication which 
the latter might think it his duty to make. Feeling, cer- 
tainly, no less solicitude than his companions as to the 
possibly momentous result of the interview about to take 
place, he yet entirely confided in his friend's discretion, — 
a delicate forbearance which the young man could not 
but feelingly appreciate, and which he acknowledged by 
a pressure of the hand at the moment when they were 
on the point of entering the room of the excited Presi- 
dent. 

Jackson, immediately after the interview, prepared a 
special message to Congress, which he submitted to the 
judgment of Livingston. The latter disapproved the 
paper, and drew himself a substitute, which he sent to 
the President with the following note : — 

" January ii, 1836. 

" My Dear General : Professions on my part, in 
communicating with you, would be worse than useless : 
they would imply a suspicion that there was a want of 
confidence which for twenty years has been uninterrupted. 
During that time you have known my attachment to 
your person, and my desire to promote your public repu- 
tation, always identified in my mind with the glory of 
our country. I, therefore, though no longer one of your 
official advisers, take the liberty, at times, of o{!"ering my 
advice freely on subjects where I think it may be of 
use. 

" Such a case now occurs. The message about to be 
delivered is one of no ordinary importance : it may pro- 



CONCLUSION. 40g 

duce war or secure peace. Should the French govern- 
ment be content to receive your last message, they will 
not do so until they have seen this. There should not, 
therefore, be anything in it unnecessarily irritating. 
You have told them home-truths in the first. You 
have made a case that will unite every American feeling 
on the side of our country. It cannot be made stronger, 
and to repeat it would be unnecessary. The draft you 
did me the honor to show me would make an admira- 
ble manifesto or a declaration of war ; but we are not 
yet come to that. The world would give it that char- 
actei* ; and, issued before we know the effect of the first 
message, it would be considered as precipitate. 

" The characteristics of the present communication 
ought, in my opinion, to be moderation and firmness. 
Our cause is so good, that we need not be violent. Mod- 
eration in language, firmness in purpose, will unite all 
hearts at home, all opinions abroad, in our favor. Warmth 
and recrimination will give arguments to false friends 
and real enemies, which they may use with effect against 
us. On these principles I have framed the hasty draft 
which I enclose. You will with your usual discernment 
determine whether it suits the present emergency. At 
any rate, I know that you will do justice to the motive 
that has induced me to offer it. 
" Yours, 

"Edw. Livingston." 

The reader who examines the message which was 
sent to Congress, dated the 15th of January, 1836, will 
find that it is not "a declaration of war," nor in any sense 
" violent," but that its " moderation in language " is 
equalled by its "firmness in purpose." Indeed, its tone 
of determination, though quiet, is intense. It produced 



430 LIFE OF EDWARD LIVINGSTON. 

the best effect possible. England immediately afterwards 
offered her friendly services as mediator between the 
United States and France. General Jackson promptly 
accepted the offer, but with distinct notice and open res- 
ervation that his government would never recede from the 
ground it had taken. This kind of judicial submission, 
in which one party decides the cause in his own favor 
beforehand, may seem ludicrous, but it really took place 
in this important international case ; for France also ac- 
cepted the proposed arbitrament, notwithstanding the 
vital reservation on the part of the United States, and 
the mediator seemed prepared to decide as General Jack- 
son had already done ; but France saved England the 
trouble by declaring herself ready to pay the money, 
and the disturbed ancient amity of the two nations was 
happily and at once restored. 

This visit at Washington was Mr. Livingston's last 
absence from his family, and the occasion of the last of 
his letters to them. Of these, the following is an ex- 
tract from the latest one, dated February 5, 1836: — 

" How can you say, my dearest wife, as you have done 
in several of your letters, that you can do nothing to 
secure the happiness of our family, and that all the 
merit is mine ^ What have you done for these thirty 
years past but to direct me by your wise suggestions, 
to restrain me by your prudence from rash undertak- 
ings, to encourage me in every honorable and useful 
pursuit, and to console me under afflictions and disap- 
pointments that would have overwhelmed me and made 
me relinquish every effort, if you had not been at my 
side to teach me how to bear them 1 What I am I owe 
chiefly to you; and I will not permit you to undervalue 
the aid you have given me." 

Mr. Livingston passed the remainder of the winter in 



I 



CONCLUSION. 431 

New York, and early in the spring was once more 
among his buds at Montgomery Place. He anticipated 
a summer of tranquillity and complete happiness. The 
correspondence which his hold upon public attention, at 
home and abroad, imposed, formed no drawback to his 
ease ; for he despatched it as if it were a recreation, 
though with methodical exactness. His capacity for en- 
joyment was in no way impaired, except by a partial 
deafness which had been growing upon him gradually 
for many years. His relish for out-of-door occupation 
was as strong as it had ever been. About the middle 
of May, he planned an excursion to Long Island for 
trout-fishing, in company with one or two friends. 

In the night preceding Saturday, the 21st of the month, 
he was taken suddenly and violently ill with bilious colic. 
During the next two days he obtained scarcely any 
relief from excruciating bodily pain, his vigorous con- 
stitution and unimpaired strength only adding to the 
agony of his sufierings. He bore them with the quiet 
fortitude which nature had given him, and which had 
been perfected by the lessons of misfortune and grief. 
Urbanity and habitual consideration for the interests and 
feelino's of those about him continued to mark his de- 
meanor as much as they had done while his health was 
perfect. When an old family servant who had injured 
his foot entered his room, he gently reproved him for 
his imprudence in coming up-stairs, but thanked him for 
the feeling which had prompted the exertion. 

He was delirious for a few hours, during which time 
he spoke of nothing but his rural pursuits, his eyes spark- 
ling as he dwelt proudly upon his success in transplant- 
ing the locust in full leaf, and repeated with animation 
that it would revolutionize that part of horticultural pro- 
ceedings. Speech left him after his return to conscious- 



432 LIFE OF EDWARD LIVINGSTON. 

ness ; but he still welcomed, with an extended hand or 
a benignant smile, those who approached his bed. 

On Monday, the 23d of May, 1836, within five days 
of the completion of his seventy-second year, he ex- 
pired, easily, serenely, and cheerfully, surrounded by his 
family and many of his friends. His sister, the pious 
Mrs. Garretson, then eighty-five years of age, had been 
constantly with him during his brief illness. 

To those who had known him his death seemed pre- 
mature ; for no one had come to regard him as an old 
man. It was remarked that his black hair resting upon 
the pillow of his coffin presented a striking contrast with 
the record of his years inscribed upon the lid. 

His remains were laid beside those of his mother, in 
the vault of the family at Clermont, the place of his birth. 
A plain tablet, placed by his wife and daughter in the 
Dutch Reformed church at the village of Rhinebeck, 
bears a simple inscription, describing him as "a man, for 
talents equalled by few, for virtues surpassed by none." 

Montgomery Place, possessed by his widow till her 
death in I860,* and since then by their daughter, Mrs. 

* Mrs. Livingston passed her wid- coach. As we were about to depart 
owhood of nearly a quarter of a cen- from one of the stations, my husband 
tury in complete retirement. She and myself occupying the back, seat, 
died, as for many years she had lived, and all the other places, but one, 
a member of the Methodist church, being filled, a plain man, holding 
No circumstance was wanting to per- by the hand a very pretty young 
feet the contrast between the begin- girl, presented himself at the side of 
ning and the close of her days. The the vehicle, and carefully scanned 
memory of her husband, his charac- the faces of all the passengers. Af- 
ter, his actions, and his fame, con- ter doing so, he turned to my hus- 
tinued paramount in her thoughts band and said, ' I was looking for 
and conversation to the last. The some one to whom I might confide 
following was one of her latest rem- the charge of my daughter, v\ho is 
iniscences of him, given to a friend, obliged to travel without a protector 
with temporary animation at a time for some distance. I think I must 
when she was almost too feeble to select you.' ' You judge rightly, 
converse. " On one of our return- my friend,' said I, ' you judge right- 
ing journeys to New Orleans," she ly ; he has been the protector of in- 
said, "we were travelling through nocence all his life.'" 
the interior of Pennsylvania by stage- 



CONCLUSION. ^3g 

Barton, remains much as he left it. His library and 
the rooms he particularly occupied have scarcely been 
disturbed. His locust-tree still flourishes upon the 
lawn. His gun, flint-locked and rusty, and his fishing- 
rod stand where he last placed them, in a corner of the 
library. In this room, — a square apartment, with plain 
shelves from floor to ceiling, — the writer passed some 
thoughtful days in reading the late occupant's large cor- 
respondence Avith many, of the leading spirits and think- 
ers of his time. 

The honors paid to Livingston's memory, publicly and 
privately, immediately after his death, were all that his 
reasonable ambition could have craved. " A purer, sweet- 
er, or superior spirit," said Charles J. Ingersoll, " seldom 
has departed. He belonged to a peerage of which there 
are very few members." 

The young Theodore Sedgwick, the third eminent 
man, in direct succession, of the name, wrote, " I 
shall never cease to rejoice that I had an opportunity, 
though how much too brief! of knowing one who was 
an honor no less to his race than to his country." 

" I have lost a friend," was the language of another 
young and ardent admirer of his character, " whom 
pride, esteem, and affection conspired to make dear to 
me. Nor could I ever tell whether I loved or admired 
him most. His social and endearing qualities were 
equal to the splendor of his intellect and the glory of 
his life." 

The common council of the city of New York, in 
publicly noticing his death, declared that he had been 
" a leader in every enterprise calculated to improve or 
adorn society. Whether in courts or camps, his philo- 
sophic mind seemed to comprehend within its ample 
limit the whole human race." 

55 



434 LIFE OF EDWARD LIVINGSTON. 

At the close of a long oration, devoted to a review of 
the life and character of the departed Academician, de- 
livered before the new Academy of the Institute of 
France, M. Mignet, the historian, said, " By the death 
of Mr. Livingston, America has lost her most powerful 
intellect, the Academy one of its most illustrious mem- 
bers, and Humanity one of her most zealous benefac- 
tors."* 

Of a like tenor was the general voice, not only of 
municipal bodies and political societies in several States, 
but of eminent men and of learned and philanthropic 
associations in America and in Europe. The Society 
of St. Tammany commemorated his death and that of 
the illustrious Madison, in the same series of resolutions. 
The Masonic General Grand Chapter of the United 
States, of which, as the successor of De Witt Clinton, 
upon the death of the latter, he had been since 1829, by 
three triennial elections, the official head, adopted, as a 
memorial forming a page of its records, an elaborate 
epitaph, reciting the principal events and actions of his 
life. The Guatemalan government ordered the observ- 
ance of a public mourning for him. 



Thus I have sketched the leading events of Living- 
ston's life, as my researches have presented them to my 
own mind. The reflection which has proceeded from 
the task has, more than anything else, impressed me 
with the conviction, that, in biography as well as in 
history, complete accuracy is only to be approached, 

* " Par la mort de M. Livingston, un de ses plus zeles bienfaiteurs." — 

FAmerique a perdu sa plus forte Eloge Historlque de M. Liiungston, 

intelligence, 1' Academic un de ses par M. Mignet, etc. etc. h'aris, 

plus illustres associes, et Thumanite 1838. 



1 



CONCLUSION. 



435 



not attained. At least, I can only pretend to have fairly 
reflected the actual impressions derived by one mind 
from a diligent study of abundant materials. I trust 
the reader has been furnished with sufficient facts from 
which to deduce for himself a satisfactory estimate of 
the genius and character of Livingston ; while I follow 
a settled custom in tracing some outline of the concep- 
tion I have myself formed. 

In looking at the character of Edward Livingston, the 
quality which first invites attention is the very uncom- 
mon breadth of his sympathies. Whatever rightfully 
interests human beings, — government, laws, knowledge, 
science, taste, society, civilization, affairs, amusement, 
religion, — had always a genuine and hearty interest 
for him. This imparted the peculiar zest which he found 
in the simple acquisition of knowledge, — a zest which 
with him continued to be as keen in old age as it had 
been in youth, and which led to the variety and depth of 
his merely intellectual attainments, gained, as they were, 
during an unceasing whirl of active labor, care, and ex- 
citement. 

The same quality, not less than simple benevolence, was 
the foundation of his philanthropy, in which there was 
not a tinge of bigotry or austerity. His scheme for the 
reformation of penal jurisprudence, cherished and worked 
upon during all his adult life, never became a rigid and 
unalterable theory, but was the subject of improving 
touches from time to time, such as came from continued 
reflection, or from new light laboriously gained. 

From this pervading human interest came the prac- 
tical, many-sided capacity which enabled him to pass 
rapidly through various employments, those of advo- 
cate, legislator, executive, judge, publicist, cabinet minis- 
ter, and diplomatist, and to easily distinguish himself in 



436 LIFE OF EDWARD LIVINGSTON. 

all, without ever ceasing to be a loving relative, a genial 
friend, and a jovial companion. 

The innate democracy of his spirit proceeded from the 
same source. He estimated men, even kings, at what, 
upon candid scrutiny, he found to be their inherent value. 
Neither in his public writings and speeches, nor in the 
mass of his unpublished manuscripts which I have exam- 
ined, have I discovered a word to indicate that he deemed 
his birth to be better than that of any other American 
citizen. He was proud of his brother's public services, 
of his father's virtues, and of his grandfather's accom- 
plishments, but seemed scarcely to have heard that the 
family pedigree extended further. In his intercourse 
with men, public and private, he always stood squarely 
upon his intrinsic merits. When he undertook the office 
of Secretary of State, he solemnly measured his qualifi- 
cations by those of his predecessor, and sincerely dis- 
trusted his own. A man of narrower, though equally 
powerful mind, might have found his judgment, in such 
a comparison, influenced in some degree by the fact that 
the other was a self-educated son of a farmer in the same 
county where his own family name had been a somewhat 
lordly one for several generations. 

Considering his great abilities, his strong inclination 
to public affairs, and the circumstances which so greatly 
favored his political advancement, the moderateness of 
his ambition was a striking and singular trait. In his 
democratic opinions there was no mixture of demagogic 
views. Heartily aiming to win distinction, he was not 
accustomed to fear or court 

" The rabble's noisy censure or applause." 

The reputation which he desired and strove after he had 
no idea of attaining except by well and clearly earning 
it. I scrutinized the whole mass of draughts of letters 



CONCLUSION. 43y 

which he left, in order to see if a single sentence in them 
indicated that he had, at any time, aimed to reach a 
higher office than he enjoyed, namely, the Presidency 
of the United States ; and it did not appear that such a 
thought ever entered his mind. In this he is a bright 
example, if they would only observe it, to those troops of 
scantily cultured men who coarsely aspire to the chief 
magistracy of a great nation, without taking anything like 
corresponding pains to make themselves qualified to adorn 
a station so exalted. 

As for his intellect, it was one of general acuteness 
and uniform power, without any dull side or any dazzling 
gift; just as his writings and speeches present few salient, 
distinct, and quotable beauties, but rather a steady felicity, 
a constant power, and a pervading eloquence. 

But this grand capacity was not perfectly rounded. 
One faculty it signally lacked. At no period of his life 
was he competent, practically, to manage financial affairs. 
In this one regard he was not much more than a child. 
It was as if a guardian genius had purchased for him 
gifts sufficing for all other emergencies, by debarring 
him from one important endowment which even the 
stupid often possess. If the dull favorites of Mammon 
ever envied his shining parts, they perhaps found com- 
fort in the substance of the maxim from Chaucer, — 

" The gretest clerkes ben not the wisest men." 

His moral nature was a rare assemblage of con- 
trasted virtues. The courage and force of will with 
which, at the age of forty, he set about the mending 
of his suddenly broken fortunes, the fortitude with 
which he afterwards bore up against the disappoint- 
ments of twenty years, and the tremendous combative 
energy with which he conducted the controversy against 
Jefferson, would seem to be qualities of so hardy a 



438 LIFE OF EDWARD LIVINGSTON. 

kind as to be likely to choke out some of the more re- 
fined principles which have their seat in the heart. But 
\vith him it was not so. Prosperity had not spoiled, 
and adversity could not sour him. During his long 
buffet with misfortune he did not become capable of 
harboring resentment ; he " spoke no evil " of his ad- 
versaries ; he grew eager to forgive the man who had 
inflicted on him what he never ceased to think was a 
capital injury : at the same time he made free sacrifices 
to local public good, and went through gigantic labors 
for the good of his whole race ; while in the little things 
of every-day life he had abundant sympathy, and no 
scorn for the thoughts and feelings of all who came 
about him. 

In the cardinal points of morality his life-long con- 
duct appears to have been blameless. His writings, 
public and private, contain frequent traces of religio'is 
faith and religious sentiment, but no trace of theologi- 
cal views. 

The single flaw which I have found in this character 
— in reality there may have been others which I have 
failed to perceive, but, if there were such, they must 
have been of a minor and not palpable sort, I am per- 
suaded — sprung from the defective faculty which has 
been often noticed in these pages. The owing of debts 
after they are due, when it becomes a settled habit, 
even though starting out of pure misfortune, and not 
accompanied by any deliberate or conscious intention to 
do wrong, must, it would seem, beget in the course of 
a lifetime a less active consideration for the rights of 
deferred creditors than is consistent with a perfect sense 
of justice. This habit is the cause of shipwreck to many 
not unpromising characters ; it is a rock of danger to 
any but the stanchest in general principle ; and the suf- 



CONCLUSION. 439 

fering which it always costs the man upon whom it gets 
fastened, however great or good he may be, furnishes, 
wherever it is seen, an important lesson. 

From so much excellence this surely is a small de- 
duction. After it is allowed as freely as it may be, the 
character of Livingston remains one in which we may 
say, speaking with the limitations which belong to all 
descriptions of finite worth, that there was nothing 
sordid, nothing false, nothing coarse, — a character on 
the whole singularly heroic, simple, and Christian. 



INDEX. 



Adair, General, 202. 

Adams, John, his action in the case 
of Jonathan Robbins, 81. 

Adams, John Quincy, his speech on 
the conduct of France in failing 
to fulfil the treaty of July 4, 1831, 
422. 

Alexander, Mr., his arrest by Gen- 
eral Wilkinson, 133. 

Alien bill, in the House of Repre- 
sentatives, 75-80. 

Ames, Fisher, member of Congress 
in 1795, 64. His part in the dis- 
cussions upon Jay's treaty, 68, 73. 

Analectic Magazine, 42, note. 

Armstrong, General John, 16, 360. 
Vide Letters and Extracts. 

Armstrong, Mrs. John, 16, 114. 

Ballard, Captain, 389. 

Barton, Thomas P., his marriage to 
Cora Livingston, 384. Secreta- 
ry of the French legation. Id. 
Charge d'' Affaires, 400. Demands 
passports, returns home, and reports 
in person to the President, 426— 
428. Vide Letters and Extracts. 

Barton, Mrs. Thomas P., 384. Vide 
Letters and Extracts. 

Batture Ste. Marie, acquisition of, by 
Edward Livingston, 115. Allu- 
sion to the controversy respecting 
the title. Id., 122, 134. An ac- 
count of the controversy, 135-183. 

Bayard, James A., leads the Feder- 
alists in opposition to Jefferson's 
election, 85-87. 

Benson, Egbert, 48, 50, 52. 

Bentham, Jeremy, study of his writ- 
ings by Edward Livingston, 96, 
note. Proposes the printing the 



Livingston Code by Parliament, 
278. Vide Letters and Extracts. 

Benton, Thomas H., 283. 

Bernadotte (Charles Jean), 108 and 
note, 278 and note. 

Blount, Mr., of North Carolina, 
his resolutions on Jay's treaty, 
67. 

Bollman, Dr., his arrest by Gen- 
eral Wilkinson, 127. Presents a 
draft on Edward Livingston from 
Aaron Burr, 130. Carried un- 
der arrest to Washington, 133. 

Broglie, the Due de, 401. 

Buchanan, George, his " Rerum 
Scoticarum Historia," i. 

Burgoyne, General, surrender of, 36. 

Burr, Aaron, mention of, 41, 48. 
His country-seat, 46. Remarks 
upon his duel with Hamilton, and 
upon his character, 54-56. His 
election to the Vice- Presidency, 
84. His conduct during the elec- 
tion, 84-87. Gives to Dr. Boll- 
man a draft on Edward Living- 
ston, 130. 

Burr, Theodosia, 97. 

Butler, Benjamin F., 425. 

Butler, Thomas L., 200. 

Carleton, Judge Henry, 123, 125. 
Vide Letters and Extracts. 

Charles Jean (Bernadotte) of Sweden. 
Vide Letters and Extracts. 

Claiborne, W. C. C, Governor of 
Louisiana, 140, 196, 197. 

Clay, Henry, mention of, 283. A 
senator of the United States, 330. 
Leader of the opposition, 367. 
Moves a scrutiny into the circum- 
stances of the settlement of ac- 



INDEX. 



441 



counts between the United States 
and Mr. Livingston, Id. Ac- 
quiesces in the confirmation of 
the latter as Secretary of State, Id. 
Yet maligns Livingston after his 
death. Id., note. 

Clermont, estate of Judge Robert 
R. Livingston, 29. Visit of La- 
tayette at, in 1824, 44, note. 

Clinton, De Witt, mention of, 73. 
Resigns his seat in the United 
States Senate to become Mayor of 
New York, 90. His action in" the 
matter of the removal of Gen- 
eral Montgomery's remains from 
Canada, 244-246. His death, 

434- 

Clinton, Sir Henry, 36. 

Code, The Livingston, some ac- 
count of, 255-275. Its reputa- 
tion, 276-281, 381. 

Crichton, Chancellor, i, 2. 

Dallas, Alexander James, 367 and 
note. 

Dallas, George M., 357. His de- 
fence of Mr. Livingston in the 
Senate, on the occasion of Mr. 
Clay's scrutiny, 367. Vide Let- 
ters and Extracts, 

D'Avezac, Armand, 124 and note. 

Davezac, Jules, translator of the Liv- 
ingston Code, 276 and note. 

Davezac de Castera, Auguste, 125, 
213. Acts as aid and judge-ad- 
vocate in the campaign for the de- 
fence of New Orleans, 200 and 
note. Charge d'Jffalres at the 
Hague, 413. Vide Letters and 
Extracts. 

Davezac de Castera, Louise, her 
marriage to Mr. Livingston, 124. 
Her history and family. Id. Her 
character, 125. Her influence 
with her husband, 365, 366. Her 
death, 432. Anecdote related by. 
Id., note. Vide Letters and Ex- 
tracts. 

Doll, Dominie, 31. His daughter, 
Id. and note. His school at Eso- 
pus, 33. Removal to Hurley, 

37- 
Douglas, Earl of, his murder at Edm- 

boro' Castle, 2. 
Douglas, David, his assassination, 2. 
Duane, James, his farm, 46. Mayor 
56 



and Judge, 48. His career, 49. 
Decision in the case of Rutgers 
^versus Waddington, 49, 50. 
Du Ponceau, Peter S., revises the 
press for Livingston's answer in 
the Batture case, 179, 180. Cor- 
respondence with Livingston, 283, 
287-294. His friendship for Liv- 
ingston, 287. Vide Letters and 
Extracts. 

Elliott, Commodore, 415. 
Esopus (Kingston), 33-36. 

Fleming, Sir Malcolm, his assassi- 
nation at Edinboro' Castle, 2. 

Foot's resolution, debate upon, in 
the Senate, 330. Speech of Ed- 
ward Livingston upon, 330-351. 

Forsyth, John, 400, 427, 428. 

Franklin, Benjamin, allusion to, 26. 

Gallatin, Albert, 64, 69, 73. 
Garretson, Rev. Freeborn, 16. 
Garretson, Mrs. Freeborn, 16, 424, 
432. Vide Letters and Extracts. 
Gates, General Horatio, 36. 
Giles, William B., 39, 64, 68, 69, 

73- 

Grasse, the Count de, gratitude to, 
expressed by Congress, 80. 

Guatemala, adoption of one of Liv- 
ingston's codes in, 279. Public 
mourning by, on the death of Liv- 
ingston, 434. 

Hamilton, Alexander, 41,48. His 
first eminence as a lawyer, 49. 
His argument in the case of Rut- 
gers 'versus Waddington, 49, 50. 
Remarks upon his duel with Burr, 
54-56. His action in congres- 
sional canvass at New York, in 

1796, 73' 74- 

Harrison, Richard, 90. 

Hobart, John Sloss, 52. 

Hoffmann, Josiah Ogden, 48. 

Hotham, Commodore, 36. 

Howe, Admiral, 36. 

Huger, Mr., of South Carolina, 87. 

Hugo, Victor, 277, 405. V\At Let- 
ters and Extracts. 

Ingersoll, Charles J., anecdote re- 
lated by, 97. His character of 
Livingston, 433. 



442 



INDEX. 



Jackson, Andrew, a member of 
Congress in 1796, 64. His vote 
against the address to Washing- 
ton, 65. Appointed Major-Gen- 
eral, 197. Issues proclamations 
from Mobile, Id. Repairs to 
New Orleans, Id. His reception 
and speech. Id. His intimacy 
with Livingston, 198. Employs 
the services oi the latter in vari- 
ous capacities. Id. Declares mar- 
tial law, Id. Appoints Lewis Liv- 
ingston a Captain, 199. Reviews 
the troops in the city, Id. Tri- 
umphal return to the city after the 
repulse of the enemy, 201. In- 
fluence of Livingston over him, 
202. His action in the case of the 
brothers Lafitte, 203. His arrest 
of Judge Hall, and subsequent an- 
swer for contempt of court, 207, 
208. Presents his miniature to 
Mr. Livingston, 208. Plan of 
writing his life by the latter, 209 
and note. Becomes a senator of 
the United States, 311. Growing 
intimacy with Livingston, 312- 
316. Support of, by the latter, in 
1824 and 1828, 316. His entry 
upon the Presidency, 326. Veto of 
internal improvement bills, 353. 
Dissolution of the Van Buren cab- 
inet, 357. His manner of urging 
the Secretaryship of State upon Mr. 
Livingston, 358. His proclama- 
tion to nullifiers, 371—381. Ap- 
points Mr. Livingston Minister to 
France, 387. His irritation at the 
failure of the French government to 
fulfil thetreaty of July 4, 1831, 394. 
His instructions to Livingston, 
400. His approval of the con- 
duct of the latter. Id., 422. Re- 
ceives Mr. Barton's final report of 
the state of the affair with France, 
428. His message to Congress 
thereon, 428-430. Vide Letters 
and Extracts. 

Jay, John, 40. His treaty consid- 
ered in the House of Representa- 
tives, 67—73. 

Jefferson, Thomas, his election to the 
Presidency in the House of Rep- 
resentatives, 84-88. Appoints Ed- 
ward Livingston Attorney of the 
United States at New York, 90. 



Invests General Wilkinson with 
extraordinary powers in the matter 
of Burr's scheme against the gov- 
ernment, 127. His Batture con- 
troversy with Edward Livingston, 
i35~'83' I^'s pamphlet on that 
subject, 143. Extracts therefrom, 
144, 145, 171, 173, 175, 177. 
His remarks on the Livingston 
Code, 281. Vide Letters and Ex- 
tracts. 
Johannes Secundus, a translation 
from, 42, note. 

Kent, James, 48, 52, 222. Vide 

Letters and Extracts, 
Kidd, Captain, his commission as 

privateer, and conduct as pirate, 

9, 10. 
King's College (Columbia), 30. 
Kingston (Esopus), 33-36. 
Knox, Rev. John, allusion to his 

" Historic," etc., 3. 
Kossuth, Louis, 279. 

Lafayette, General, his early in- 
timacy with the family of Mar- 
garet Beekman Livingston, 43. 
His attentions to Edward Liv- 
ingston, 44. His visit to Amer- 
ica in 1824, Id., note. His atten- 
tions to Lewis Livingston, 250— 
252. His death, 409. Vide 
Letters and Extracts. 

Lafitte, the brothers, 203, 204. 

La Rochefoucauld-Liancourt, 74. 

Latour, Major A. Lacarriere, 199, 
215 and note. 

Lawrence, Major William, 197. 

Lee, General, 39. 

Lee, Henry, his appointment to 
office by President Jackson, and 
rejection by the Senate, 353, 354. 

Letters and Extracts. Margaret Beek- 
man Livingston to Mr. Vander- 
kemp, 58,60. Jeremy Bentham to 
Edward Livingston, 351. Berna- 
dotte (Charles Jean, of Sweden) 
to the same, 278, note. George 
Clinton to the same, 104. Peter 
S. Du Ponceau to the same, 287. 
Victor Hugo to the same, 277, 
405. Andrew Jackson to the 
same, 312, 313, 323, 371, 372. 
John Jay to Chancellor Living- 
ston, 40. Thomas Jefferson to Ed- 



INDEX. 



US 



ward Livingston, 281, 284, 294. 
James Kent to the same, 181, 280. 
Lafayette to the same, 108, 327, 
382, 409. The same to Mrs. 
Richard Montgomery, 43. Ma- 
dame Lafayette to Edward Living- 
ston, 108, note. Edward Living- 
ston to General Armstrong, 360. 
The same to Jeremy Bentham, 
96, note, 118, note. The same to 
the Due de Broglie, 401. The 
same to Judge Carleton, 360. 
The same to George M. Dallas, 
360, 364, 368, 369, 370, 411. 
The same to Auguste Davezac, 
413, 415. The same to Peter 
S. Du Ponceau, 45, 179, 283, 288, 
289, 291, 202, 298. The same to 
Mrs. Garretson, 113, 413. The 
same to the Howard Society of 
New Jersey, 406. The same to 
his daughter, 325. The same to 
his son, 189, 191, 192,213—243. 
The same to his wife, 358, 361, 
366, 430. The same to H. Mar- 
shall, 369. The same to members 
of Congress, 175. The same to 
Mrs. Montgomery, 199, 201, 21 x. 
The same to Timothy Pickering, 
317. The same to the Comte de 
Rigny, 398. The same to Mrs. 
Tillotson, 125, 188. Julia Liv- 
ingston to her father, 187. Lew- 
is Livingston to the same, 212, 
250. The same to Mrs. Mont- 
gomery, 198, 201, 247. Robert 
Livingston (the 2d) to his grand- 
son, 19, note. Judge Robert R. 
Livingston to his wife, 17. The 
same to his father, 22, 27. The 
same to his son, 23, 25. Chan- 
cellor Robert R. Livingston to 
Edward Livingston, 75. Eti- 
enne Mazureau to the same, 121. 
Nicolas, Emperor of Russia, to 
the same, 278, note. John Ran- 
dolph, of Roanoke, to the same, 
382. Captain John Reid to the 
same, 209, note. Martin Van 
Buren to the same, 356, 400. 
William P. Van Ness to the 
same, 86. M. Villemain to the 
same, 404. Daniel Webster to 
the same, 29S. 
Lewis, General Morgan, 16, 44, note, 
30. 



Lewis, Mrs. Morgan, 16. 

Lewis, Major, 380. 

Linlithgow, Earls of, 3, 5, note. 

Livingstons of New York, their 
Scotch pedigree, 1-5. Early in- 
fluence of the family in New York, 
and its decline, 12, 13. 

Livingston, Brockholdst, 11,48,53, 

.•5.4- 

Livingston, Charles Edward, 90, loi. 

Livingston, Edward, mention of, 11. 
His birth, 15. Childhood, 29. 
Family influences, 30. His rem- 
iniscences of General Montgom- 
ery, 32. Schools, 33. First din- 
ner at Esopus, Id. School-life, 
Id., 34. Enters college at Prince- 
ton, 38. His residence there, and 
graduation, 39. His habits of 
study at college, Id. Early intel- 
lectual tastes, 40. Study of law, 
41. Predilection for the civil law, 
Id. Admission to the bar. Id. 
Increased application to study. 42. 
Habits and tastes, Id. Poetical 
compositions. Id. Acquaintance 
with Lafayette, 43-45. Extract 
from a letter to Du Ponceau, 45. 
Early practice of the law, 56-59. 
His habits at that period, 58. 
Lines to Longinus, 58, 59. His 
marriage, 59. His first election 
to Congress, 59-61. Canvass in 
1794, 61-64. His first congres- 
sional career, 64-88. A member 
of the opposition under Wash- 
ington's and Adams's administra- 
tions, 64. Vote against address 
of the House to Washington, 65. 
Action on the trials of Randall 
and Whitney, Id., 66. Efforts in 
behalf of American seamen, 66, 
67. Course and speech upon Jay's 
treaty, 6-]-'ji. Exertions in be- 
half of Lafayette at Olmutz, 73. 
His second election to Congress, 
Id., 74. Notice of, by La Roche- 
foucauld-Liancourt, 74. He op- 
poses the establishment of the Na- 
val Department, 75. Speech on 
the Alien bill, 76-79. On the Se- 
dition bill, 80. Efforts for the re- 
lief of the daughters of the Count 
de Grasse, Id. Third election to 
the House, 81. Resolutions re- 
flecting upon the course of Presi- 



444 



INDEX. 



dent Adams in the case of Jona- 
than Robbins, Id. Debate there- 
on, 82. Earliest efforts towards a 
reformation of criminal law, 83. 
Course in the election of Jefferson 
by the House of Representatives, 
84-87. Death of his wife, 89. 
Names of his children, 90. Ap- 
pointment as Attorney of the Unit- 
ed States, Id. And as Mayor 
of New York, Id. His quali- 
ties, 91. His industry in office, 
92. Prepares a volume of law 
reports. Id. Lays the corner- 
stone of the city-hall, 93. Proj- 
ect for the prevention of pauper- 
ism and crime, addressed to the 
Mechanic Society, 93-97. Study 
of Bentham's writings, 96, note. 
Social traits, 97, 98. Conduct 
during the prevalence of yellow- 
fever, 98-100. Illness and recov- 
ery, 100. His position at that 
period, Id. His first great mis- 
fortune, loi. His debt to the 
United States, and the manner of 
incurring it, 101-104. Conduct 
in that difficulty, 104. Resigna- 
tion of offices. Id. Remains at 
his post till the subsidence of the 
epidemic. Id. Is succeeded in the 
mayoralty by De Witt Clinton, 
105. Public and private homage 
paid to Livingston, 105-107. Re- 
solves to emigrate to Louisiana, 
109, no. Sails for New Orleans, 
no. The voyage, in. New 
Orleans and its population in 1804, 
Id., 112. Character of the Cre- 
oles, 112, 113. Energy of Mr. 
Livingston ; his activity at the bar, 
113. His success, 115. Acqui- 
sition of the Batture Ste. Marie, 
Id. Allusion to the Batture con- 
troversy. Id. Mr. Livingston's 
character as a lawyer, 116. His 
public spirit. Id, He opposes the 
introduction of common-law prac- 
tice in I.ouisiana, Id., X17. Pro- 
poses and frames a code of pro- 
cedure, 117, 118. Its adoption, 
its features, Id. A confusion, of 
tongues in the courts, 118, 119. 
Address before a Masonic lodge, 
119, 120. Mr. Livingston's meth- 
od in advocacy, 120, 121. His 



supremacy at the bar, 121. Social 
characteristics, 122, 123. Interest 
in mechanics, 123. Homesick- 
ness, 124, 125. Second marriage. 
Id. Domestic happiness, and suc- 
cess in business, 125, 126. Ob- 
stacles and dangers, 126. Calum- 
nious attack by General Wilkin- 
son, 126-134. Spirited resistance 
by Mr. Livingston, Id. Bright 
prospects, 134. The Batture con- 
troversy, 135-183. His answer to 
Jefferson's pamphlet, 143. Ex- 
tracts therefrom, 146-180, 1S2. 
Circular letter to members of 
Congress on the subject, 175. 
Temper of Mr. Livingston, 184. 
Effects of the Batture controversy 
upon his affairs, Id., 185. Anec- 
dotes, 185, 186. Love of poetry, 
1 86. Fragment of translation from 
Horace, 187. Anxiety to be re- 
united to his children. Id. A voy- 
age to New York, 188. Death 
of Julia, Id. Her father's grief, 
Id. Mr. Livingston's services in 
the campaign for the defence of 
New Orleans, 195. His qualifi- 
cations for the emergency. Id. 
Delivers a speech at a meeting of 
citizens, 196. Serves on a com- 
mittee of safety. Id. Draws up an 
address of the committee to the 
people, Id. Corresponds with 
General Jackson at Mobile, 197. 
Assists on public reception of Jack- 
son at New Orleans, Id. Serves 
in various capacities under Jackson, 
198. Reads an address before the 
troops, December 18, 18 14, 199. 
Acts as aide-de-camp at the battle 
of December 23, Id., 200. Nolte's 
anecdote, 200. Influence in Jack- 
son's military councils, 202, 203. 
Confides the safety of his family to 
one of the Lafittes, 204. Draws 
up " General Orders " and address 
to the army. Id. Is sent to ar- 
range cartel for exchange of pris- 
oners, and is detained at the Brit- 
ish fleet, 206. Returns home with 
news of peace, 207. Draws up de- 
fence of General Jackson before 
Judge Hall, 208. Is presented by 
General Jackson with the latter's 
miniature, /(Y. Harmony and con- 



INDEX. 



U5 



trast between him and Jackson, 
2IO. Renewal of the struggle 
for pecuniary independence, 211. 
Parts a second time with his son, 
212. Unsuccessful pecuniary en- 
terprises, 243, 244. Adverse de- 
cision of the court in the Batture 
case, 247. Mr. Livingston's for- 
titude on that occasion, 248. He 
accepts a seat in the Louisiana 
legislature, 249. His industry in 
that body, Id. His labors upon 
the civil code of Louisiana, Id. 
Commences the construction of his 
system of penal law, Id. Sends 
his son to Europe for his health, 
250. Death of Lewis, 253. In- 
tensity of the father's grief, 254. 
He finds a solace in labors upon 
his penal code, Id. Is elected 
to revise the criminal law of 
Louisiana, 255. His qualifications 
for the task. Id., 256. Reports 
his plan, 257. Its approval by the 
legislature. Id. Completion of the 
work. Id. Its destruction by fire, 
and reproduction, Id., 258, 291, 
292, 293, 298. Condition of 
criminal laws of Louisiana in 
1820, 258—262. Some account 
of Livingston's system, 262-275. 
His explanatory addresses to the 
legislature, 274. Failure of the lat- 
ter to act upon the proposed system. 
Id. Effect of its publication abroad. 
Id., 2"] 5. Reputation of the Code 
and of its author, 276-281. Mr. 
Livingston's election to Congress 
from Louisiana, 282. His position 
in the House, Id. Speech on roads 
and canals, 287 and note. Speech 
on the bill to amend the judicial 
system, and on the equality of the 
States, 299-303. On the services 
of Chancellor Livingston in the 
purchase of Louisiana, 304-309. 
Exertions in behalf of the interests 
of Louisiana, 309. Attention to 
national works and projects. Id. 
Payment of his debt to the United 
States, Id., 310. Manners and so- 
cial habits, 310, 311. Growth of 
the intimacy with General Jackson, 
312-316. Support of Jackson for 
the Presidency, in 1824 and 1828, 
316, 317. Visit, public dinner. 



and speech at Harrisburg, 317- 
322. Defeat as a candidate for re- 
election to the House, 322, 324. 
Address to constituents during the 
canvass, 323. Election to the 
Senate of the United States, 324. 
Satisfaction of Livingston's am- 
bition, 325. Promulgation of his 
penal system. Id. His social and 
domestic tastes. Id. The desire 
of the President to employ him 
in the government, 326, 329. Of- 
fer and declination of the mission 
to France, 329. Speech on Foot's 
resolutions, 330-351. Vindication 
of himself. General Jackson, and 
others, for their vote in the fourth 
Congress against the address to 
Washington, 332-342. Remarks 
on the Constitution and the theory 
of the Federal Government, 345- 
347. On the advantages of the 
Union, 348-351. Plan of adapt- 
ing the Livingston Code to the use 
of the General Government, 352. 
Senatorial independence, 353, 354. 
Inheritance of the fortune of Mrs. 
Montgomery, 355. Retirement 
to Montgomery Place, 356. Sum- 
mons to Washington, and offer 
and acceptance of the post of Sec- 
retary of State, 356-359. Diffi- 
dence as to his qualifications for 
that office, 359, 360. Official la- 
bors, 362. Personal and social 
characteristics, absence of mind, 
punning, etc., 363-366. Scrutiny 
by the Senate into the circum- 
stances of the settlement of ac- 
counts between the United States 
and Livingston ; his confirmation 
as Secretary of State, 367. His 
silence on that occasion, 368. His 
independence in office. Id., 369. 
His refusal to countenance a cal- 
umny upon Mr. Clay, 369. His 
position upon the President's bank 
policy, 370. He draws up the proc- 
lamation to the people of South 
Carolina, of December 10, 1832, 
371-381. Continued growth of 
his reputation as a publicist, 381, 
382. His election to the Institute 
of France, 382. Acquaintance 
with de Tocqueville, 384. Tribute 
to him by the latter, 385. Unsuc- 



U6 



INDEX. 



cessful attempts to keep a diary, 
386-390. Resignation as Secre- 
tary of State, and appointment to 
the French legation, 387. Voy- 
age to France, 388, 389. Active 
attention to the business of the 
mission, 390-404. Is offered pass- 
ports by the French government, 
396, 397. He refuses them and 
awaits instructions, 397. Answer 
to the Comte de Rigny, 397-399- 
Approbation and further instruc- 
tions by the President, 400. De- 
mands his passports upon the 
conditional appropriation by the 
Chamber of Deputies of the money 
due from France to the United 
States, 401. Parting letter to the 
Due de Broglie, Id. Continued 
attention of Livingston to the 
promulgation of his views upon 
penal law, 404-408. Latest in- 
tercourse with Lafayette, 409. 
Journey through Switzerland and 
Germany, 410. De Sellon's mon- 
ument, Id. Interview with Mit- 
termaier, 411. Social traits and 
temper,/^. Correspondence, 41 2. 
Regard for Davezac, 413. Res 
angusta domi, 414. Farewell to 
Davezac, 415. Homeward voy- 
age, Id. Popular greeting at New 
York, 416. Public dinners and 
speeches, 416-422. Approbation 
of his conduct by the government 
and the country, 422. Retirement 
to Montgomery Place, 423. Oc- 
cupations and associations there, 
423-425. His last visit at Wash- 
ington and appearance in the Su- 
preme Court, 425, 426. Tribute 
to Jefferson, 426. Visit at the 
White House with Mr. Barton, 
427,428. Consultation with the 
President as to a special message 
to Congress relative to the affair 
with France, 428, 429. Return 
to Montgomery Place, 431. Last 
illness and death, Id., 432. Pub- 
lic and private honors paid to his 
memory, 433, 434. His charac- 
ter, 434-439. Vide Letters and 
Extracts. 

Livingston, Gilbert, 10, 12. 

Livingston, Henry B., 16, 32, 44, 
note. 



Livingston, Rev. John H., 12. 
Livingston, John R., i6, 24, 43, no, 

.423- 

Livingston, Julia E. M., 90, 1 14, 187, 
188. Vide Letters and Extracts. 

Livingston, Lewis, 90, 114, 189, 194, 
198, 199, 212, 244, 246, 247, 250, 
252, 253. Vide Letters and Ex- 
tracts. 

Livingston, Manor of, 6-1 1. 

Livingston, Peter R., 16. 

Livingston, Mrs. Peter R., 16. 

Livingston, Philip, second proprietor 
of Livingston Manor, 10. 

Livingston, Philip, signer of Decla- 
ration of Independence, 11. 

Livingston, Philip, a competitor of 
Edward Livingston for Congress 
in 1798, 61. 

Livingston, Robert, ancestor of the 
Livingstons of New York, 5-10. 

Livingston, Robert, (the 2d,) 10, 11, 
18-21. Vide Letters and Extracts. 

Livingston, Robert, last proprietor 
of the Manor, 10, 11. 

Livingston, Robert, 12. 

Livingston, Judge Robert R., (father 
of Edward Livingston,) 11. His 
death, 11, 30. His family, 15, 
16, 30. His marriage, 16. His 
character, 21, 27. A member of 
the Stamp Act Congress, 21. 
His judicial independence, 26. 
His character as drawn by his 
wife, 27. By Smith, the histo- 
rian. Id. His country-seat, 29. 
His town-house. Id., ^6. Vide 
Letters and Extracts. 

Livingston, Mrs. Robert R., (Mar- 
garet Beekman, mother of Ed- 
ward Livingston,) 16, 27, 28, 37, 
38, 45, 56-58, 60, 89, note. Vide 
Letters and Extracts. 

Livingston, Chancellor Robert R., 
II, 15, 19, note, 20, 26, 30, 35, 
48, 108, 193, 361, note. Vide 
Letters and Extracts. 

Livingston, William, Governor of 
New Jersey, 1 1. 

Livingston, William S., 50. 

Livingston Creek, 9. 

Livingstone, Sir Alexander, of Cal- 
endar, I, 2, 3. 

Livingstone, Alexander, fifth lord, 3. 

Livingstone, Alexander, seventh 

lord, created Earl of Linlithgow, 3. 



INDEX. 



UJ 



Livingstone, Rev. Alexander, 4, 5, 
note. 

Livingstone, Sir Alexander, present 
claimant of baronetcy and earl- 
dom, 3. 

Livingstone, James, first lord, 3. 

Livingstone, John 4, 5, note. 

Livingstone, Rev. John, 4, 5. 

Livingstone, Mary, maid of honor to 
Mary Stuart, 3. 

Livingstone, Thurstaniis, 3, 4. 

Livingstone, Rev. William, 4, 5, 
note. 

Loudon, Samuel, printer, etc., 47. 

Louis Philippe, 383, 391, 392, 395, 

39'5.- 
Louisiana, purchase of, 107, 108, 
304-308. 

Madison, James, member of Con- 
gress in 1795, 64. Course on 
Jay's treaty, 68, 69, 73. 

Maine, Dr. H. S., his remarks upon 
Edward Livingston, 278 and note. 

Marshall, John, his first appearance 
in Congress, 81. Speech on Mr. 
Livingston's resolutions in the 
case of Joiuithan Robbins, 82, 83. 

Mazureau, Etienne, 121, 122, 24q. 
Vide Letters and Extracts. 

McEvers, Anna, 59. 

McEvers, Charles, 59. 

McEvers, Eliza, 59, no. 

McEvers, Mary, her marriage to 
Edward Livingston, 59. Her 
person and character. Id. Her 
death, 89. 

McLane, Louis, 358, 391, 392, 394, 
395 and note. 

Mignet, M., his eulogy upon Liv- 
ingston,' 434 and note. 

Mitchill, Dr. Samuel L., 84, 217. 

Mittermaier, Professor, anecdote of, 
411. 

Monroe, James, his share in the pur- 
chase of Louisiana, 108, 304, 308. 

Montgomery, General Richard, 15, 
20, 31, 32, 244-246. 

Montgomery, Mrs. Richard, 15, 31, 
32, 45, 245, 246, 355. Vide Let- 
ters and Extracts. 

Montgomery Place, description of, 
355- 

Nash, Thomas, alias Jonathan Rob- 
bins, the case of, 81-83. 



Naval Department, establishment of, 
75- 

Netherlands, the King of the, sends 
a medal to Mr. Livingston, 279. 

New York, city of, in 1785, 46, 47. 
Sketches of members of the b-:nch 
and bar in, after the Revolution, 
.48-36. 

Nichols, Colonel, his attempt to in- 
duce Lafitte to join the British in 
the invasion of New Orleans, 203. 

Nicolas, Emperor of Russia, 278. 
Vide Letters and Extracts. 

Nolte, Vincent, 200 and note. 

Parton, James, references to his Life 

of Jackson, 370, 380. 
Princeton College, 38, 39. 
Putnam, General, 39. 

Randall, Robert, trial of, 65, 66. 

Randolph, John, of Roanoke, 283, 
382, note. Vide Letters and Ex- 
tracts. 

Reid, Captain John, 200, 208, 209 
and note. Vide Letters and Ex- 
tracts. 

Rigny, Comte de, 396, 397, 400. 

Ritchie, Alexander H., engraver of 
the plates in this volume, 208, 
note. 

Rives, William C, 329. 

Robbins, Jonathan, a/ias Thomas 
Nash, the case of, in Congress, 
81-83. 

Schuyler, Alida, 6, 10. 

Schuyler, Margaretta, 12. 

Schuyler, Pietcr, 6, 12. 

Sedgwick, Theodore, a member of 
Congress in 1795, 64. He takes 
part in the discussions upon Jay's 
treaty, 68, 69. 

Sedgwick, Theodore, Junior, 416. 
His character of Livingston, 433. 

Sedition bill, in the House of Repre- 
sentatives, 75-80. 

Sellon, M. de, 410. 

Sempill, Lord, 3. 

Serrurier, M., 396, 397. 

Slavery, in the State of New York, 

30- 
Smith, Melancthon, 48, 51. 
Smith, Dr. Southwood. 276. 
Smith, William, historian of New 

York, 27. 



448 



INDEX. 



Taillandler, M., his remarks upon 
the Livingston Code, 278. 

Taylor, Daniel, (the British spy,) 
execution of, 36. 

Tillotson, Mr. and Mrs. Thomas, 16. 
Vide Letters and Extracts. 

Tocqueville, Alexis de, 384, 385. 

Troup, Robert, 48. 

Valle, M., painter of General Jack- 
son's miniature, 208, note. 

Van Buren, Martin, 283, 356, 358, 
367, 400, 427, 428, 436. Vide 
Letters and Extracts. 

Van Ness, William P., 86. 

Varick, Richard, 51, 90, 91. 

Vaughan, General, 36. 

Verplanck, Gulian C, 42, note. 

Villemain, M., his remarks on the 
Livingston Code, 277, 278, 404, 
405- 



Waddell, W. Coventry H., his rem- 
iniscences of Edward Livingston, 

363, 364-. 

Wallace, Sir James, 36. 

Watson, James, 61, 74. 

Watts, John, 61. 

Webster, Daniel, in the House of 
Representatives, 283. In the Sen- 
ate, 330. In the Supreme Court, 
425. Vide Letters and Extracts. 

White, Hugh L., 358. 

Whitney, Charles, his trial, 65, 
66. 

Wilkinson, General James, his pro- 
ceedings against Mr. Livingston 
and others at New Orleans in 
1806, 126-133. 

Witherspoon, Dr. John, his career 
and character, 38, 39. 

Woodbury, Levi, 358. 



THE END. 




CAMBRIDGE : PRINTED BY H. O. HOUGHTON. 



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